Federal Preemption of State Obscenity Legislation - The federal obscenity laws prohibit the importation, mailing, interstate transportation, common carrier transportation, cablecasting and broadcasting of obscenity. None of these laws (except broadcasting) have ever been interpreted to prevent the states from enacting general obscenity laws that prohibit the dissemination, transportation, mailing or importation into the state of obscenity or the enactment of state child pornography laws. In fact, the seminal case of obscenity, Miller v. California, 413 U.S. 15 (1973) involved a conviction under a state statute for a mass mailing of obscene advertisements. The Supreme Court clearly established in Roth v. United States that, absent a burden on the federal postal system, states may regulate in this field. In 1950, the Third Circuit in Dumont Laboratories v. Carrol, 184 F. 2d 15 3, held that the Federal Communication Act of 1934 which, regulated the broadcasting of obscene or indecent language or images, preempted a Pennsylvania law that required motion pictures on television to be submitted to prior state review, explaining that the language of the federal law was so all inclusive as to indicate a preemptive intent.

Specific State Preemption of Municipal Legislation - Municipalities are creatures of the State and their authority to pass laws and ordinances is subject to a grant of legislative authority found in the State's constitution or statutes. This may also take the form of a municipal charter or Home Rule Act. In addition the State may, after the establishment of the local body, specifically authorize it to act in various areas of law. Just as it has the authority to delegate legislative power, it may restrict that power. In the obscenity field this can result in complete preemption at the state level or by the passage of a statute can give authority to enact local legislation not inconsistent with state law.

Implied State Preemption of Local Laws - In the absence of express preemption, the rule for determining the issue of preemption is whether the state law is so pervasive as to indicate an implied intention to preempt local legislation or whether the ordinance conflicts with a state law on the same subject. Legislative intent to pervasively occupy the field must appear clearly in the statute or in the statute's legislative history. In general, a conflict arises when an ordinance prohibits what the state statute authorizes or permits what the statute forbids.

Partial Preemption - Where the state has only partially regulated in the obscenity field a local ordinance covering matters not regulated by the state statute will be upheld.

Concurrent Jurisdiction - It is also possible for the legislation to specifically (or by inaction or implication) permit both state and local laws on the same subject or where the local statute is additional regulation on the same subject.