(concurring in part and dissenting in part):
This case presents one more attempt to breathe life into the Ober Act, the fatal defects of which the Supreme Court exposed in Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967). I believe that we should not hesitate now to sign the death certificate for this long-lingering corpse. Since the Grand Jury specifically charged to investigate possible violations of the Ober Act by this plaintiff has been discharged without having taken action I agree that there is no need for an injunction at this time.1 However, that determination should be without prejudice to the right of plaintiff to renew in this proceeding the request for an injunction if the threat of prosecution looms again in the future. At any rate we should grant full declaratory relief and I dissent from the majority’s refusal to declare sections 2(a), (b) and (c), 6, 7, and 8 invalid.
I.
In Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184 (1967), the Supreme Court found the oath provisions of the Ober Act unconstitutional. When the case was originally before the. district court, the severability clause, section 18 of the Ober Act, was described as being “as clear an expression of severability as could be found.” 258 F.Supp. 589, 596 (D.Md.1966). However, the Supreme Court was not impressed, 389 U.S. at 59, 88 S.Ct. 184, and on remand the three-judge panel (including two of the three judges in the present case2) held, after extensive discussion, that the non-oath provisions of the Ober Act were not severable from those the Supreme Court *446had invalidated. 287 F.Supp. 61, 64-65 (D.Md.1968).
My brethren, however, seek to evade the effect of the Whitehill remand by drawing a distinction between “loyalty” and “sedition” provisions and by maintaining that Whitehill spoke only to the former. I perceive no such distinction. The operative words and definitions addressed in Whitehill and contained in the so-called “loyalty” sections recur in the other provisions. Moreover, there is no hint in our former opinion that the discussion of severability was so restricted.
Plaintiff had asked that we declare Article 85A unconstitutional in its entirety, because it is an interwoven statute largely dependent upon the unconstitutional definitions found in § 1 thereof, and such provisions that do not directly refer to or make reference to § 1, or the other unconstitutional provisions, are not severable.
Id. at 62,
The court agreed in substance and wrote that
In short, so much of the original Maryland scheme has been frustrated that we think the presumption of severability has been destroyed.
Id. at 65.
We did invalidate the oath provisions and the definitions of “subversive person,” “subversive organization” and “foreign subversive organization.” However, we declined to enter a sweeping final judgment covering the entire Act because, and only because as the opinion makes eminently clear, plaintiff lacked the requisite standing to contest the parts of the Act not pertaining to him. Id. at 65.
The Whitehill remand now obligates us to grant full declaratory relief. Plaintiff in the present case, unlike the plaintiff in Whitehill, has a direct interest in the attacked portions of the Ober Act and thus properly calls into question the validity of those sections. We are bound by the express holding upon the remand of Whitehill that the Ober Act is not severable. Having thrown out the oath provisions and definitional sections in Whitehill and having invalidated even more of the Act today, our duty is plain and compelling — to set the discredited Ober Act to rest for once and for all.
II.
A particularized consideration of the sections that the majority leaves undisturbed also persuades me of their invalidity.
Sections 2(a) and 2(c).
Section 2(a) makes it a felony to [cjommit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States or of the State of Maryland * * * by revolution, force, or violence.
Applying the standard of whether “men of common intelligence [would] speculate at their peril on its meaning” the Supreme Court held, in Whitehill, that even after Shub v. Simpson, 196 Md. 177, 76 A.2d 332 (1950), the alteration clause was “still befogged.” As the Supreme Court viewed the language found in § 13, the prohibition on “alteration of the constitutional form of the Government * * * by revolution, force, or violence” could be read to cover peaceful revolution or change by non-violent means. Thus, § 13 was declared to be unconstitutionally vague.
The infected language is also found in § 2(a). It is true, as the majority points out, that § 2(a) explicitly purports to cover only acts and not speech. However, that aspect does not immunize § 2(a) from attack. Because of its vagueness, § 2(a) arguably applies to acts of peaceful alteration of the government. These political acts are among the most zealously protected by the federal constitution. Some could indeed be deemed the exercise of speech. Others are shielded by the right of assembly, the right to petition for redress of *447grievances, or the right to avail of the political machinery for change that is built into the Constitution itself. This was recognized by the Supreme Court in Whitehill. As Mr. Justice Douglas wrote,
If the Federal Constitution is our guide, a person who might wish to “alter” our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of “alteration” by the amending process in Article Y; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue (Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131), is as applicable to the States as it is to the Federal Government; and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697) as well as to advocacy and debate.
389 U.S. at 57, 88 S.Ct. at 185.
Manifestly, then, a statute which by its vagueness impinges on peaceful political activity is void on its face. For that reason, § 2(a) must be declared invalid.3 Section 2(c), which prohibits conspiracy to commit the acts banned by § 2(a), is similarly void.
Section 2(b)
The same fate must befall § 2(b) which, like 2(c), also depends on § 2(a). Section 2(b) makes it a crime to advocate the acts spelled out by § 2(a) “under circumstances as to constitute a clear and present danger to the security” of the government.
There are two indispensable elements of a valid prohibition on advocacy. On the one hand, the proscribed speech must urge conduct that itself may constitutionally be condemned. In addition, there must be substantial imminence of action flowing from the speech. The rule was first articulated by Mr. Justice Holmes in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). He said that
the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
249 U.S. at 52, 39 S.Ct. at 249.
More recently the Supreme Court has held that advocacy, to fall under a constitutionally permissible ban must amount to “incitement to imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Under either version, and under Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) as well, the apprehended “substantive evil” must be one that could validly be prohibited.
The “clear and present danger” test embodied by § 2(b) relates to only one of the constitutional requisites. In the other respect the statute is fatally deficient. Section 2(b) punishes the advocacy of acts which, under the vague definition of § 2(a), could comprise activity that is constitutionally protected. No*448where has it been held that the insertion of a “clear and present danger” test saves a statute which bans advocacy of acts which are not legislatively prohibit-able. Thus, since § 2(b) depends on § 2(a) for the delineation of the exhorted and ultimately feared acts, it suffers from the same constitutional infirmity.
The majority relies on Dennis, supra, to sustain § 2(b). But the Supreme Court has already explicitly rejected such an argument. In Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L. Ed.2d 377 (1964), the Court confronted an oath that contained precisely the same form of vagueness complained of here. The Court said,
The Washington oath goes beyond overthrow or alteration by force or violence. It extends to alteration by “revolution” which, unless wholly redundant and its ordinary meaning distorted, includes any rapid or fundamental change. Would, therefore, any organization or any person supporting, advocating or teaching peaceful but far-reaching constitutional amendments be engaged in subversive activity? Could one support the repeal of the Twenty-second Amendment or participation by this country in a world government?
377 U.S. at 370, 84 S.Ct. at 1321.
The contention that the Dennis case counters the vagueness attack, said Mr. Justice White for a majority consisting of seven justices, is “founded on a misreading of § 2 [of the Smith Act] and Dennis v. United States.” Id. Note 8.
To recapitulate, our conclusion must inevitably be that no part of § 2 is valid. The vagueness of the Ober Act is particularly egregious since its toll is taken on First Amendment freedoms. “Precision of regulation must be the touchstone” in legislation affecting those rights. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). As the Supreme Court has already declared, the Ober Act falls short by that strict standard.
Sections 6, 7, and 8.
Sections 6, 7, and 8 relate to the establishment of the office of Special Assistant Attorney General, the collection of information, and the maintenance of records for the enforcement of the Ober Act.
My brethren are persuaded that the same tests are not applied to the gathering of information by the Attorney General that are applied to criminal prosecutions. But in this I think they are mistaken. There is ample provision aside from Article 85A for the general gathering of information in legitimate law enforcement. The only scope for the operation of sections 6, 7, and 8 is to allow the gathering of information and the keeping of records for prosecutions, or more likely, threats of prosecutions, under the other, unconstitutional, sections of the Ober Act.
Still vivid in memory is an episode that occurred some years ago in connection with a large public meeting held in the Lyric Theatre of Baltimore to discuss the topic of “The Church and a Strengthened United Nations.” The then Special Assistant Attorney General, sensing “subversion,” undertook to gather information. He stationed police agents at the theatre entrance and in the neighborhood to take the automobile license numbers and to snap pictures of those who attended. The agents also entered the theatre to make notes of the speeches and it was later publicly announced that the information gained was “a basis for action.”4 Although nothing came of it, and indeed the Governor rebuked the whole venture, it is impossible to exaggerate the consternation it engendered in the community. No better use of the office having ever been publicly made known or suggested, the lesson of this event should not dispose a court to speculate about the possible legitimate employment of the sections and the office that is created. Of course, a state may ordinarily decide whether or not to continue an office in *449existence, but when the office is as closely related as this one to the purpose of enforcing the invalid statutory provisions, it becomes imperative upon us to declare its invalidity as well.
III.
In sum, my brethren are performing major surgery in an attempt to salvage a remnant of a statute that, even by their own recognition, is largely illegal. They acknowledge the invalidity of the oath provisions condemned in Whitehill, the § 1 definitions and the other sections that depend upon them, and all references to threats to the security of the national government. It requires a heroic rewriting of the statute to produce anything that would be enforceable. Aside from consideration of the more technical concept of severability (Part I, swpra), one must ask what is the possible utility of this patchwork.
The proposed doctoring is ill-advised and can be productive of nothing good or useful. If we abandon the plainly unconstitutional portions of the law, what remains cannot, standing alone, become viable in any constitutional pursuit. It is not operative without the overt or covert restoration of the tainted part. I say, the way to get rid of the infection is not to retain sections that in their very origin and nature have been inextricably linked with the provisions the Court today repudiates.
In deciding what relief the plaintiff deserves, the majority has obviously been impressed by the questionable content of this “underground” newspaper. I agree that there is reason for irritation at the newspaper’s coarse, irresponsible and phantasmagorical call to “revolution.” I also agree that a legitimate Grand Jury investigation into possible offenses against the drug and obscenity laws would not occasion our intervention or concern.
But these considerations simply illustrate the evil of the statute. No legislation may be used as a coverall for prosecution for any kind of offense indiscriminately. In invoking the Ober Act in this case the judge read to the Grand Jury a quote from the newspaper counseling violation of the drug laws. Thus the very genesis of this case points up the wide range of susceptibility of persons to prosecutions under the shadowy contours of the Act for offenses not adverted to nor even in the remotest contemplation of its draftsmen. Our legal system demands that conduct sought to be proscribed as criminal be defined by some specifically drawn statute. If one runs afoul of such a statute, he may be punished. But if no statute covers his conduct he may not be prosecuted- — not even under an all-purpose subversion Act.
In oral argument the Attorney General pressed the contention that plaintiff is entitled to no relief since its “hands are unclean.” In his words, “they are the kind of people to whom the protection of the law should not be extended simply because, on the other hand, they are turning around and attempting to void law enforcement and to thwart the ends of justice.” This is really only a variation on the theme that tolerates Ober Act prosecution for almost any conduct deemed offensive. Whether it be said that plaintiff is subject to prosecution under the Ober Law for nefarious activities generally, or that it may not assert a constitutional right to prevent the invocation of the Act because the plaintiff is unworthy, either formulation demonstrates the vice of the law: the extreme uses to which its amorphous terms can be put.
This is an Act that is uniquely fraught with the possibility of misuse. Declaratory relief should be granted in the full measure of plaintiff’s prayer.
. Even though, under the circumstances, I believe that injunctive relief is not warranted, I do not subscribe to the view, apparently held by the majority, that the “anti-injunction statute,” 28 U.S.C. § 2283, applies before a state lawsuit has commenced, that is, before an indictment has been obtained. Cf, Dombrowski v. Pfister, 380 U.S. 479, 484, n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1964).
. That court comprised Judges Winter, Thomsen and Sobeloff.
. To bolster its argument for inaction the majority states that
[a]t the very least, the Maryland courts should be given an opportunity to construe § 2(a) and probably thereby avoid any constitutional question.
The majority’s position is that it would be appropriate to abstain from passing on this portion of the Ober Act on the supposition that the state courts might somehow evolve a construction that would save it. Abstention in this case, however, would be most improper. We are dealing with a statute that is almost twenty years old. The state court has already construed it. The Supreme Court, asked to review §§ 1 and 13, did not hesitate to do so. Since then there has been no further legislative or judicial attempt to cure the deficiencies of the Act. Under these circumstances there can be no justification for federal abstention.
. Baltimore Sun, May 11, 1953.