Does New Mexico's law requiring disclaimers on AI-generated political ads (HB 182) violate the First Amendment?

Plain-English summary

In March 2024, Governor Lujan Grisham signed HB 182, an amendment to the Campaign Reporting Act that targets AI-generated political "deepfakes." The amendment does three main things: it requires a disclaimer on advertisements containing "materially deceptive media" indicating they were created with AI; it makes it a violation of the Act to knowingly distribute deceptive media within 90 days of an election with intent to mislead voters; and it imposes criminal penalties (misdemeanor for a first offense, fourth-degree felony for a second).

The Governor asked the AG to assess four facial constitutional concerns. The opinion answers them this way:

1. Is the definition of "artificial intelligence" unconstitutionally vague? No. Read in context with the broader definition of "materially deceptive media" and the technical meaning of AI in the deepfake setting, the definition gives sufficient notice to ordinary speakers and enforcement officials.

2. Does the disclaimer requirement survive First Amendment scrutiny even though it excludes consensual depictions? Yes. The Legislature was entitled to focus on non-consensual portrayals; that narrower aim is constitutionally permissible. The First Amendment does not require the Legislature to address every problem at once.

3. Is the disclaimer requirement constitutional as applied to satire and parody? Likely no. Satire and parody, by definition, are not likely to mislead a reasonable viewer. A disclaimer requirement is therefore not narrowly tailored to the government's interest in stopping voter deception when applied to those forms.

4. Can private citizens bring criminal prosecutions under the new private-enforcement provision? No. The AG construes § 1-19-26.8(E) to authorize private parties (depicted individuals, candidates, voter-protection groups) to seek civil injunctive relief only. Criminal enforcement remains the province of the Attorney General and District Attorneys.

In short, the bulk of HB 182 stands on its face. The satire-and-parody disclaimer carve-out is the soft spot, and the law does not turn private actors into prosecutors.

What this means for you

If you make political ads with AI

You can keep using AI in political advertising, but if any of your work creates a "materially deceptive" image, video, or audio (depicting a candidate doing or saying something they did not, without their consent), you need a disclaimer that the content "has been manipulated or generated by artificial intelligence." The disclaimer needs to be readable or audible. Section 1-19-26.4(D) and (E) describe the requirement.

If your ad clearly is satire or parody, the AG's opinion treats the disclaimer requirement as likely unconstitutional as applied to you. That said, the statute is on the books until a court strikes the satire portion, so the cautious move is to include the disclaimer anyway and rely on the AG's analysis defensively if you are challenged.

If you are a candidate harmed by a deepfake

Section 1-19-26.8(E) gives you, as a depicted individual or as an injured candidate, a private right to seek injunctive relief. You cannot bring criminal charges yourself; that requires the Attorney General or the local District Attorney. Refer the matter to those offices for criminal enforcement, and use the private right for fast injunctive relief to take the ad down or compel a disclaimer.

If you are a voter-protection or civic organization

Section 1-19-26.8(E)(5) explicitly gives "any organization that represents the interests of voters who are likely to be misled" standing to seek injunctive relief. You do not get civil penalties or criminal prosecution authority, but you can go to court to stop distribution.

If you are a comedian, satirist, or political cartoonist

The AG opinion is favorable to you. The opinion concludes the disclaimer requirement, as applied to "an advertisement that reasonably constitutes satire or parody," is likely unconstitutional because it is not narrowly tailored. That conclusion is persuasive, not binding; a court has not yet ruled. If you are charged or sued for not including the disclaimer on a parody ad, this opinion is your strongest defensive document.

If you are a Secretary of State, district attorney, or AG enforcer

The opinion settles two enforcement questions. First, you keep your existing criminal jurisdiction; the new private cause of action does not transfer it. Second, you should expect facial and as-applied challenges in the satire context. The opinion telegraphs the AG's view that satire-and-parody enforcement is unlikely to survive scrutiny, which informs how you exercise prosecutorial discretion.

If you advise platforms, broadcasters, or ad-buying networks

When a candidate or voter group sends you a takedown demand citing § 1-19-26.8, the AG's reading is that they have civil injunctive authority but not criminal enforcement power. Treat their notices as you would any non-judicial demand: evaluate, escalate, and if served with a court order, comply. Voluntary takedowns reduce litigation exposure but are not legally compelled absent court action.

Common questions

Q: What is "materially deceptive media" under New Mexico law?
A: Section 1-19-26(S) defines it as an image, video, or audio that (1) depicts an individual engaged in conduct or speech in which the depicted individual did not engage; (2) was published, disseminated, distributed, or displayed to the public without the consent of the depicted individual; and (3) was produced in whole or in part by using artificial intelligence.

Q: What does the disclaimer have to say?
A: It must state that the advertisement "has been manipulated or generated by artificial intelligence." Section 1-19-26.4(D). The disclaimer needs to be readable or audible. Section 1-19-26.4(E).

Q: Why didn't the AG strike down the law as facially vague?
A: Facial vagueness challenges, especially in the First Amendment context, are "disfavored" and "hard to win," per Moody v. NetChoice, 144 S. Ct. 2383 (2024). The challenger must show the statute is vague in a substantial number of applications. Critics complained that the AI definition could sweep in ordinary photo apps. The AG concluded that read in context, with the technical meaning of AI in the deepfake setting, the law is sufficiently clear.

Q: How is this law different from California's AB 2655?
A: California's law banned distribution of materially deceptive media. A federal court issued a preliminary injunction against it in Kohls v. Bonta, finding it likely not narrowly tailored. New Mexico's law does not prohibit distribution; it only requires a disclaimer. That is reviewed under "exacting scrutiny," a less demanding standard than the strict scrutiny applicable to outright bans.

Q: Why is the satire-and-parody disclaimer requirement different?
A: Because satire and parody, by definition, are not likely to deceive a reasonable viewer. Hustler Magazine v. Falwell, 485 U.S. 46 (1988), among other cases, establishes that protection. The government's interest in preventing voter deception does not apply to media that no reasonable viewer would mistake for fact. So the disclaimer fails the "narrowly tailored" prong of exacting scrutiny.

Q: Can a candidate sue for civil penalties as well as injunctive relief?
A: The AG reads § 1-19-26.8(E) as authorizing only injunctive relief for the listed private enforcers, not civil penalties. The State Ethics Commission keeps its civil-penalty authority under § 1-19-34.6, and the AG and District Attorneys keep criminal enforcement under §§ 1-19-36 and 36-1-19.

Q: What is "exacting scrutiny" and how does it differ from "strict scrutiny"?
A: Both are heightened standards used in First Amendment cases. Strict scrutiny requires a compelling government interest and the least restrictive means. Exacting scrutiny requires a substantial relationship to a sufficiently important government interest, narrowly tailored. Disclaimer and disclosure rules typically get exacting scrutiny because they regulate accompanying information rather than suppressing speech. Citizens United v. FEC, 558 U.S. 310 (2010); Americans for Prosperity Found. v. Bonta, 594 U.S. 595 (2021).

Q: Does this opinion bind the courts?
A: No. AG opinions are persuasive authority. A court reviewing a challenge to HB 182 would consider the AG's analysis but would reach its own conclusion. Given that the AG is the chief enforcement officer for criminal violations, the opinion has practical importance: the AG signaling that satire-and-parody enforcement is constitutionally suspect makes such enforcement unlikely.

Background and statutory framework

Generative AI's rapid maturation in 2022 to 2024 made convincing fake video and audio cheap and accessible. State legislatures responded with election-targeted laws. New Mexico's HB 182 was part of a national wave; California, Minnesota, Texas, and others have versions with different design choices.

The Campaign Reporting Act, NMSA 1978, §§ 1-19-26 through -37, regulates campaign advertising in New Mexico. HB 182 added definitions for "artificial intelligence" and "materially deceptive media" (§ 1-19-26(C), (S)), a disclaimer requirement (§ 1-19-26.4), and a distribution prohibition with criminal penalties (§ 1-19-26.8). Existing enforcement structure (State Ethics Commission civil suits under § 1-19-34.6, AG and District Attorney criminal enforcement under § 1-19-36) was untouched, but a new private right of action was added in § 1-19-26.8(E).

The federal cases the AG draws on, Citizens United, Buckley v. Valeo, and Americans for Prosperity Foundation v. Bonta, set the constitutional framework: disclosure and disclaimer rules in political advertising are constitutional under exacting scrutiny if they bear a substantial relationship to a sufficiently important government interest and are narrowly tailored. The voter-protection interest comfortably qualifies as "sufficiently important."

The harder question is narrow tailoring, which is where the satire-and-parody analysis fails. Satire and parody do not deceive in the way the statute targets. So the disclaimer requirement, as applied to those forms, does not advance the law's purpose and is constitutionally vulnerable.

The private-enforcement question turns on the longstanding rule, codified at NMSA 1978, § 36-1-19 and recognized in State v. Baca, 1984-NMCA-096, that only the Attorney General, District Attorneys, and their authorized assistants may represent the State in criminal proceedings. Repeals by implication are disfavored, Ferlic v. Mesilla Valley, 2025-NMSC-___, ¶ 19, so § 1-19-26.8(E) is read as authorizing private injunctive relief only, not private criminal prosecution or private civil-penalty suits.

Citations and references

Statutes:
- NMSA 1978, §§ 1-19-26 through -37 (Campaign Reporting Act, including HB 182 amendments)
- NMSA 1978, § 36-1-19(A) (exclusive state representation)
- NMSA 1978, § 8-5-2(B) (AG authority)

Cases:
- Citizens United v. FEC, 558 U.S. 310 (2010)
- Americans for Prosperity Found. v. Bonta, 594 U.S. 595 (2021)
- United States v. Stevens, 559 U.S. 460 (2010)
- Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024)
- Kohls v. Bonta, 752 F. Supp. 3d 1187 (E.D. Cal. 2024)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
- State v. Baca, 1984-NMCA-096, 101 N.M. 716

Source

• Landing page: https://nmdoj.gov/publication/opinion/2025-09-opinion-facial-constitutionality-of-hb-182/
• Original PDF: https://nmdoj.gov/wp-content/uploads/AG-Opinion-2025-09.pdf

Original opinion text

Note: the scraped body of this opinion begins with question 3; questions 1 and 2 above were omitted by the source extraction. The linked PDF is authoritative for the full text.

3. Yes. Satire and parody, by definition, are not likely to mislead a reasonable viewer or listener into believing that they reflect actual facts. There is thus an insufficient justification for requiring a disclaimer for these types of advertisements.

4. No. The statute does not authorize criminal enforcement by private individuals or special interest groups.

Background

On March 6, 2024, Governor Michelle Lujan Grisham signed into law an amendment to the Campaign Reporting Act, NMSA 1978, §§ 1-19-26 through -37 (1979, as amended through 2024). The amendment addresses the problem of AI-generated deepfakes and their potential to mislead voters in relation to candidates or ballot issues. The amendment has three primary components: (1) it requires a disclaimer for advertisements that contain "materially deceptive media" indicating that they were created using AI; (2) it provides that it is a violation of the Act to knowingly distribute materially deceptive media within ninety days of an election with the intent to change voting by misleading voters in a way reasonably likely to result in a change to voting unless accompanied by the disclaimer; and (3) it establishes criminal liability for willfully and knowingly violating the distribution proscription. NMSA 1978, §§ 1-19-26.4 (2024), -26.8 (2024). Violations of the amended sections of the Act can result in civil penalties and injunctive relief, and a knowing and willful violation of the distribution provision is a misdemeanor for a first offense and a fourth degree felony for a second offense.

Before its enactment, the amendment was the subject of opposition questioning its constitutionality under the First Amendment. Following the amendment's enactment, the Governor requested a formal opinion from the Attorney General addressing several potential constitutional infirmities. The request does not refer to any specific application of the Act and thus focuses on the language of the amendment on its face.

Analysis

1. Is the Act's definition of "artificial intelligence" unconstitutionally vague?

Statutes are generally entitled to a strong presumption of constitutionality. See State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M. 345. A claim of vagueness is typically analyzed according to the particular facts of a case. See State v. Luckie, 1995-NMCA-075, ¶ 6, 120 N.M. 274. "For a host of good reasons, courts usually handle constitutional claims case by case, not en masse." Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024). Although statutes may be challenged on their face, such claims are "disfavored" and "hard to win." Id. at 2397, 2409.

By and large, facial vagueness challenges must establish that a law is impermissibly vague in all its applications. See N.M. Petroleum Marketers Ass'n v. N.M. Env't Improvement Bd., 2007-NMCA-060, ¶ 16, 141 N.M. 678. However, when a law implicates the First Amendment such that it could potentially result in a chilling effect on constitutionally protected speech, the Supreme Court applies a special overbreadth test to facial challenges: "[A] law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). To succeed in making such a claim, a party must usually "describe the instances of arguable overbreadth." Washington State Grange, 552 U.S. at 449 n.6.

In the 2024 amendment, the Legislature defined "artificial intelligence" 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." NMSA 1978, § 1-19-26(C) (2024). Opponents of the law before its enactment suggested that this definition fails to identify the type of "system" to which it applies and does not specify whether it applies to such applications as Snapchat, Instagram, and Adobe Photoshop. These suggestions, however, do not come close to establishing impermissible vagueness in all the statute's applications as would be required for a facial challenge.

The definition of AI does not appear in the substantive provisions of the amendment and instead informs the definition of "materially deceptive media," which means an

image, video or audio that: (1) depicts an individual engaged in conduct or speech in which the depicted individual did not engage; (2) was published, disseminated, distributed or displayed to the public without the consent of the depicted individual; and (3) was produced in whole or in part by using artificial intelligence.

Section 1-19-26(S). When the Legislature defines a term, the express definition in the statute supplies "the Legislature's intended meaning." Morris v. Brandenburg, 2016-NMSC-027, ¶ 15, 376 P.3d 836. In addition, "[a] word or phrase that has acquired a technical or particular meaning in a particular context has that meaning if it is used in that context." NMSA 1978, § 12-2A-2 (1997). "[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).

New Mexico is not alone in enacting laws designed to curb the harmful impact of deepfakes on elections. These laws target advanced and complex generative AI that "mak[es] it difficult for the average person to detect the falsity of a deepfake." Kohls v. Ellison, 2025 WL 66765, at *1 (D. Minn. Jan. 10, 2025). In the context of the broader definition of "materially deceptive media," and in light of the technical meaning of AI in the deepfake context, it appears that the statute provides sufficient notice of its scope to an average person of ordinary intelligence and provides minimum guidelines for enforcement so as not to be unconstitutionally vague on its face. See State v. Jacquez, 2009-NMCA-124, ¶ 6, 147 N.M. 313 (describing two ways in which a statute might be void for vagueness).

Because the 2024 amendment implicates the First Amendment, the Supreme Court's special overbreadth analysis applies in the context of a facial challenge. But the suggestion that the definition of AI could conceivably apply to images created with common social media applications fails to describe specific instances of arguable overbreadth. Moreover, this hypothetical challenge to the statute does not establish a substantial number of unconstitutional applications of the statute in relation to its overall legitimate scope. The below analysis of the law in the abstract does not reveal an obvious constitutional infirmity as the issue has been presented in the request for an opinion.

The 2024 amendment to the Act applies to advertisements "referring to a candidate or ballot question," Section 1-19-26(A), that is, it applies to political speech. As a general matter, "political speech must prevail against laws that would suppress it," and restrictions on political speech are subject to strict scrutiny under which there must be a compelling governmental interest and the use of the least restrictive means to effectuate that interest. Citizens United v. FEC, 558 U.S. 310, 340 (2010). "The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States, Inc., 446 U.S. 485, 503-04 (1984). "The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office . . . ." Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988).

In some states, like California, deepfake statutes prohibit the distribution of materially deceptive media. At least one court has issued a preliminary injunction against such a law based on a finding that the plaintiff was likely to succeed in establishing a failure to narrowly tailor the law to the government's interest in protecting elections. Kohls v. Bonta, 752 F. Supp. 3d 1187, 1193-96 (E.D. Cal. 2024).

New Mexico's law, unlike the one in California, does not prevent the creation, production, purchase, or distribution of materially deceptive media. Instead, it requires that such advertisements contain a disclaimer. Section 1-19-26.4(D), -26.8(B). 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." Citizens United, 558 U.S. at 366-67 (quotation marks and quoted authority omitted). 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." Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 608 (2021).

Section 1-19-26.4(D) requires a disclaimer that an image, video, or audio advertisement "has been manipulated or generated by artificial intelligence." The disclaimer need only be readable or audible. Section 1-19-26.4(E). The disclaimer prevents viewers or listeners from being misled into believing that an advertisement depicts conduct or speech genuinely engaged in by the depicted individual. In this way, the disclaimer serves the "sufficiently important" governmental interest in protecting the voting public from misinformation or disinformation about an election. The disclaimer requirement does not appear to create an undue burden on an advertiser. See Buckley v. Valeo, 424 U.S. 1, 68 (1976) (evaluating "the extent of the burden" that disclosure requirements "place on individual rights"). The disclaimer is brief, non-obtrusive, factual, and provides information that is not otherwise available to a viewer or listener. Indeed, the inability of an average viewer or listener to be able to detect a false AI-generated depiction makes it less susceptible to being remedied with the truth in the marketplace of ideas. See United States v. Alvarez, 567 U.S. 709, 727 (2012) (plurality opinion) ("The remedy for speech that is false is speech that is true."). The statute thus appears to be narrowly tailored to the government interests it serves and not overly burdensome. In short, the law does not appear to have the type of impermissible overbreadth that would support a facial challenge to its constitutionality.

2. Does the Act's disclaimer requirement survive exacting scrutiny given that it does not apply to media produced with the depicted individual's consent?

The Legislature, as part of the definition of materially deceptive media, required that the media be "published, disseminated, distributed or displayed to the public without the consent of the depicted individual." Section 1-19-26(S). Opponents of the 2024 amendment to the Act argued that it would not survive First Amendment scrutiny because it excludes consensual depictions, thereby preventing the law from accomplishing its aim of protecting voters from deceptive advertising.

The Act shows, however, that the Legislature had a narrower aim and did not design these provisions to target all deceptive advertising. The Legislature intended to prevent a person's likeness from being used for a portrayal that the person had not approved. In other words, the Legislature viewed a lack of consent as an integral component of the deception and falsity of the media. Consensual portrayals may be artificially generated, but they are less likely to mislead voters about the depicted individual's thoughts and views as expressed through the adopted words and actions of the individual's likeness. Indeed, the content of the disclosure requirement reflects this more limited purpose. The Legislature did not require a disclaimer that a particular advertisement is potentially deceptive or misleading; instead, the disclaimer must only indicate that the advertisement "has been manipulated or generated by artificial intelligence." The disclaimer therefore merely alerts a viewer or listener that the depiction of the individual is not genuine, a disclaimer that would have less impact for consensual renderings. It thus appears that the disclaimer is substantially related to an important governmental interest and is narrowly tailored to the interest.

Moreover, the concern about excluding consensual depictions from the law raises an issue of underinclusiveness or underbreadth, essentially arguing that the Legislature should have targeted all artificial and deceptive advertising. The United States Supreme Court has made it clear, however, that the First Amendment does not impose "an 'underinclusiveness' limitation." R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992). The Legislature is not required to solve all problems, or even the whole of any single problem, at one time. See Denver Area Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 757 (1996); see also id. at 836-37 (Thomas, J., concurring in the judgment in part and dissenting in part). The Legislature's decision to exclude consensual depictions from the reach of the Act does not violate the First Amendment.

3. Is the Act's disclaimer requirement unconstitutionally overbroad in that it applies to advertisements that "reasonably constitute[] satire or parody"?

Parody and satire are protected by the First Amendment. See Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ'g Grp., Inc., 886 F.2d 490, 493 (2d Cir. 1989). "Satire's unifying element is the use of wit to expose something foolish or vicious to criticism. A 'parody' is to the same effect: the style of an individual or work is closely imitated for comic effect or in ridicule." Farah v. Esquire Mag., 736 F.3d 528, 536 (D.C. Cir. 2013) (quotation marks and quoted authority omitted). Satire and parody do not give rise to liability for deliberate falsehoods because they cannot be reasonably understood or interpreted as stating actual facts. See id. at 535-37.

The Legislature expressly provided that "an advertisement that reasonably constitutes satire or parody" does not violate Section 1-19-26.4 "if the advertisement includes a disclaimer consistent with the requirements provided in Subsection D of this section." Section 1-19-26.4(G)(3). It is worth noting that the Legislature's intent with respect to parody and satire is unclear; the statute specially designates satire and parody as non-violative of the statute but, in tension with this designation, requires the disclaimer that is required of all other advertisements with materially deceptive media. Read literally, Subsection G(3) merely repeats Subsection D for a specific type of advertisement. Although a "statute must be construed so that no part of the statute is rendered surplusage or superfluous," State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1 (quotation marks and quoted authority omitted), it will be presumed that the Legislature required satire and parody to comply with the disclaimer requirement applicable to other advertisements for purposes of responding to the present inquiry.

As with Section 1-19-26.4's application to other advertisements, the statute does not prohibit the creation, production, purchase, or distribution of parody and satire generated with AI; instead, the statute requires the use of a disclaimer. This provision is therefore reviewed under the exacting scrutiny standard discussed above. But the statute's treatment of satire and parody differs from other advertisements in terms of the nexus between the government's interests and the disclaimer requirement. Section 1-19-26.4 and Section 1-19-26.8 are designed to protect against misleading advertisements. See Section 1-19-26.8(A) (requiring not only an intent to mislead voters but also that the distribution of the advertisement be "reasonably likely to cause that result"). By its nature, however, "an advertisement that reasonably constitutes satire or parody" is not likely to mislead a reasonable viewer or listener. The disclaimer is thus not substantially related to the governmental interests it is designed to protect and is not narrowly tailored for this purpose. Cf. Kohls v. Bonta, 752 F. Supp. 3d at 1196-97 (concluding that a disclaimer requirement for satire and parody was likely unconstitutional because it was unduly burdensome and not narrowly tailored).

"Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate." Hustler Mag., 485 U.S. at 54. Given the importance of satire and parody to the marketplace of ideas, this part of the statute is likely unconstitutional on its face.

4. What sort of enforcement actions does the Act authorize private individuals and organizations to bring?

Before the 2024 amendment, a violation of the Act could result in civil penalties, injunctive relief, and criminal penalties. The Legislature provided the State Ethics Commission with the authority to "institute a civil action in district court" for a violation of the Act seeking injunctive relief or civil penalties, or both. NMSA 1978, § 1-19-34.6 (2021). A knowing and willful violation of the Act is a misdemeanor that "may be enforced by the attorney general or the district attorney where the candidate resides, where a political committee has its principal place of business or where the violation occurred." NMSA 1978, § 1-19-36(B) (2021). The Secretary of State "may refer a matter to the state ethics commission for a civil injunctive or other appropriate order or to the attorney general or a district attorney for criminal enforcement." NMSA 1978, § 1-19-34.4 (2021). The Act did not mention private enforcement.

The Legislature amended the Act in 2024 by specifying that the distribution of materially deceptive media is a violation of the Act and that a willful and knowing violation is a crime. Section 1-19-26.8(A), (B). The Legislature further provided for enforcement of this section of the Act

by any of the following: (1) the attorney general; (2) a district attorney; (3) a depicted individual who is falsely represented; (4) a candidate for office who has been injured or is likely to be injured by the distribution of materially deceptive media; or (5) any organization that represents the interests of voters who are likely to be misled by the distribution of materially deceptive media.

Section 1-19-26.8(E). The Legislature, however, did not amend or modify the sections of the Act that give the State Ethics Commission the authority to seek civil penalties and the Attorney General and the District Attorney the authority to enforce criminal violations of the Act.

The Attorney General is the law officer of the State and has the authority to prosecute or defend civil or criminal actions in which the State is a party or may be interested. NMSA 1978, § 8-5-2(B) (1975). The District Attorneys are the law officers of the State and the counties within their districts, N.M. Const. art. VI, § 24, and they have the authority to prosecute or defend civil and criminal actions in which the State or a county of their district is a party or may be interested. NMSA 1978, § 36-1-18(A)(1) (2001). Consistent with these provisions, the Legislature has directed that

no one shall represent the state or any county thereof in any matter in which the state or county is interested except the attorney general, his legally appointed and qualified assistants or the district attorney or his legally appointed and qualified assistants and such associate counsel as may appear on order of the court, with the consent of the attorney general or district attorney.

NMSA 1978, § 36-1-19(A) (1985). Courts lack jurisdiction over any attempted criminal prosecution by a private individual initiated without the consent of the Attorney General or the District Attorney and without the court's approval. State v. Baca, 1984-NMCA-096, ¶¶ 8-10, 101 N.M. 716.

If Section 1-19-26.8(E) were construed to authorize private prosecutions, it would conflict with Section 36-1-19 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. In the interpretation of a statute, the Legislature is presumed to be "aware of existing law when it undertakes to amend its own statutes." State v. Clah, 1997-NMCA-091, ¶ 11, 124 N.M. 6. Repeals by implication are disfavored and require clear and explicit language replacing an existing statute. Ferlic v. Mesilla Valley Reg'l Dispatch Auth., 2025-NMSC-___¶ 19, ___ P.3d ___ (S-1-SC-40162, April 21, 2025). Further, "[i]f statutes appear to conflict, they must be construed, if possible, to give effect to each." NMSA 1978, § 12-2A-10(A) (1997). Finally, statutes are construed to avoid constitutional questions whenever possible. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 12, 111 N.M. 336.

Guided by these principles, it is apparent that Section 1-19-26.8(E) does not grant private individuals the authority to appear for the State for purposes of seeking civil or criminal penalties. The Legislature did not express any intent to modify Section 36-1-19, Section 1-19-34.6, or Section 1-19-36. Moreover, Section 1-19-26.8(E) does not refer expressly to civil or criminal penalties but expressly refers to injunctive relief. 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 Section 1-19-26.8(E) to seek injunctive relief for a violation of this section but not to seek civil or criminal penalties on behalf of the State.

Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL

/s/ James Grayson
James Grayson
Chief Deputy Attorney General