Federal Preemption of State Obscenity Law Applied to Broadcasting

With the expansion of cable and free-air subscription television into more markets, interstate transmission by satellite and by broadcasting have frequently included R-rated movies. This increases the likelihood that states will apply obscenity laws and other laws related to program content to television programming. This article argues that state obscenity laws applied to broadcasting are preempted by federal law. There are several grounds for concluding that Congress intended to preempt: (1) the Communications Act empowered the FCC to establish a nationwide telecommunications system, and it is probable that state obscenity laws would conflict with each other and with federal broadcast obscenity law; (2) FCC regulation of obscenity in broadcasting has been found comprehensive, indicating that Congress intended to occupy the field, (3) were individual states to apply their obscenity laws to broadcasting under a local community standard within those states, audiences could be deprived of first amendment interests; and (4) federal preemption of state obscenity laws applied to broadcasting would not contradict the Miller requirement for community standards