The opinion
J. JOSEPH SMITH, Circuit Judge
(concurring in the result):
I concur in the result. Were we writing on a tabula rasa, I would hold the statute separable and uphold it so far as it attempts to prevent physical abuse of the flag, and not pure speech. But we sit here as a district court within the second circuit, bound to follow decisions of our Court of Appeals so long as they stand. Specifically, the determination of our Court of Appeals in Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (2d Cir. 1970), appeal pending, seems to me to require invalidation of the Connecticut statute, which is not distinguishable in any respect here relevant from the New York statute struck down in the Long Island Vietnam case. I agree with that opinion so *1212 far as it protects speech, but I question the soundness of so much of that holding, which expands the protection given pure speech or propaganda regarding the flag by Street v. New York, 394 U. S. 576 , 89 S.Ct. 1354 , 22 L.Ed.2d 572 (1969) to non-speech activity in a manner which is inconsistent with the holding of Halter v. Nebraska, 205 U.S. 34 , 27 S.Ct. 419 , 51 L.Ed. 696 (1907). I would hold that destruction or defilement of the flag itself, national or state, may constitutionally be prohibited, both under the police power of the state to prevent breaches of the public peace, and under the power of the state to protect its interest in the integrity of the adopted symbol of nationhood or statehood. See the dissents of Chief Justice Warren and Justices Black, White and Fortas in Street , and see People v. Radich, 26 N. Y.2d 114, 308 N.Y.S.2d 846 , 257 N.E.2d 30 (Ct.App.1970) aff’d per curiam by an equally divided court, 401 U.S. 531 , 91 S.Ct. 1217 , 28 L.Ed.2d 287 (1971); Sutherland v. DeWulf, 323 F.Supp. 740 (S.D.Ill.N.D.1971); State of Iowa v. Waterman, 190 N.W.2d 809 (Sup.Ct. Iowa, October 13, 1971).
The state courts should have an opportunity to sever and salvage the portion of the statute directed to destruction or defilement of the flag, or we should hold invalid only the “speech” aspects. Cf. Griffin v. Breckenridge, 403 U.S. 88, 104 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971); Oregon v. Mitchell, 400 U.S. 112, 131 , 91 S.Ct. 260 , 27 L.Ed.2d 272 (1970); Watson v. Buck, 313 U.S. 387 , 61 S.Ct. 962 , 85 L.Ed. 1416 (1941); Marsh v. Buck, 313 U.S. 406 , 61 S.Ct. 969 , 85 L. Ed. 1426 (1941).
I concur in the result therefore only because we are bound by the decision of the Court of Appeals in Long Island Vietnam to strike down the statute as written.