1. A. Except as otherwise provided in Subsections B through D of this section, it is a violation of the Campaign Reporting Act for a person to distribute or enter into an agreement with another person to distribute materially deceptive media. A person violates this subsection if that person distributes or enters into an agreement with another person to distribute materially deceptive media and:

   1. (1) the person knows the materially deceptive media falsely represents a depicted individual;
   2. (2) the distribution occurs within ninety days before an election; and
   3. (3) the person intends the distribution to result in altering the voting behavior of electors in an election by misleading the electors into believing that the depicted individual engaged in the speech or conduct depicted, and the distribution is reasonably likely to cause that result.

2. B. The prohibition provided in Subsection A of this section does not apply to materially deceptive media if that media includes a disclaimer that appears in a clear and conspicuous manner in every language used in the media and indicates: "This ____ has been manipulated or generated by artificial intelligence". The blank line in the disclaimer shall be filled in with each of the following terms that describes the media:

   1. (1) image;
   2. (2) video; or
   3. (3) audio.

3. C. The disclaimer required in Subsection B of this section shall be included as follows:

   1. (1) for visual media that is an image, the text of the disclaimer shall appear in a size that is easily readable;
   2. (2) for visual media that is video, the disclaimer shall appear for the duration of the video;
   3. (3) for media that contains audio only, the disclaimer shall be read in a clearly spoken manner and in a pitch that can be easily heard at the beginning of the audio, at the end of the audio, and if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each; and
   4. (4) for mixed media, there shall be a disclaimer in the same form as provided in this section for each form of media used.

4. D. A person found to have willfully and knowingly violated the prohibition provided in Subsection A of this section is guilty of a crime as follows:

   1. (1) for a first conviction, a misdemeanor; and
   2. (2) for a second conviction, a fourth degree felony.

5. E. Enforcement of the provisions of this section, including injunctive relief, against a person who violates this section may be sought in any court of competent jurisdiction by any of the following:

   1. (1) the attorney general;
   2. (2) a district attorney;
   3. (3) a depicted individual who is falsely represented;
   4. (4) a candidate for office who has been injured or is likely to be injured by the distribution of materially deceptive media; or
   5. (5) any organization that represents the interests of voters who are likely to be misled by the distribution of materially deceptive media.
6. F. Nothing in this section shall be construed to preclude a claim pursuant to any other section of law or any civil action for damages.

History: 1978 Comp., § 1-19-26.8, enacted by Laws 2024, ch. 57, § 3.

ANNOTATIONS

Effective dates. — Laws 2024, ch. 57 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 15, 2024, 90 days after adjournment of the legislature.

Campaign Reporting Act's definition of "artificial intelligence" is not unconstitutionally vague. — The definition of "artificial intelligence" as provided in 1-19-26(C) NMSA 1978 as a "machine-based or computer-based system that through hardware or software uses input data to emulate the structure and characteristics of input data in order to generate synthetic content, including images, video or audio" can reasonably be understood on its face by a person of ordinary intelligence as applying to generative AI applications capable of producing realistic deepfakes, and therefore the definition does not appear to be facially overbroad or unconstitutionally vague. 2025 Op. Att'y Gen. No. 25-09.

Statutes that create disclaimer language for political speech are subject to exacting scrutiny. — Statutes that create disclaimer requirements for political speech are subject to a lower standard of exacting scrutiny, rather than strict scrutiny, because such laws impose no ceiling on campaign-related activities and do not prevent anyone from speaking. Exacting scrutiny requires that the disclaimer requirement bear a substantial relationship to a sufficiently important governmental interest, and it requires that the disclaimer requirement be narrowly tailored to the government's asserted interest. 2025 Op. Att'y Gen. No. 25-09.

Constitutionality of disclaimer requirement. — The disclaimer requirement in 1-19-26.8(B) NMSA 1978 prevents viewers or listeners from being misled into believing that certain media depicts conduct or speech genuinely engaged in by the depicted individual. The disclaimer serves the sufficiently important governmental interest in protecting the voting public from misinformation or disinformation about an election, does not create an undue burden on a distributor, and is narrowly tailored to the government interests it serves. The statute is therefore not impermissibly overbroad on its face. 2025 Op. Att'y Gen. No. 25-09.

The legislature's decision to exclude consensual depictions from the reach of the Campaign Reporting Act does not violate the first amendment. — The legislature intended to prevent a person's likeness from being used for a portrayal that the person had not approved; the legislature viewed a lack of consent as an integral component of the deception and falsity of the media. The disclaimer requirements in 1-19-26.4(D) NMSA 1978 and 1-19-26.8(B) NMSA 1978 merely alert a viewer or listener that the depiction of the individual is not genuine, a disclaimer that would have less impact for consensual renderings. The disclaimer requirements are therefore substantially related to an important governmental interest and are narrowly tailored to the interest, and therefore the legislature's decision to exclude consensual depictions from the reach of the Campaign Reporting Act does not violate the first amendment. 2025 Op. Att'y Gen. No. 25-09.

Subsection E does not grant private individuals the authority to appear on behalf of the state for purposes of seeking civil or criminal penalties. — The legislature is presumed to be aware of existing law when it undertakes to amend its own statutes, and therefore if 1-19-26.8(E) NMSA 1978 were construed to authorize private prosecutions, it would conflict with 36-1-19 NMSA 1978 and the constitutional and statutory authority of the attorney general and the district attorneys to represent the state in criminal proceedings; such a construction of the statute would be contrary to established rules of statutory construction. Therefore, interpreting the statute as a whole and in pari materia with other statutes, there is little question that the legislature intended to allow the private individuals listed in 1-19-26.8(E) NMSA 1978 to seek injunctive relief for a violation of this section but not to seek civil or criminal penalties on behalf of the State. 2025 Op. Att'y Gen. No. 25-09.