(concurring in part and dissenting in part):
I am doubtful about the jurisdiction of this three-judge Court to hear the present action in light of the plaintiff’s notation at p. 24 of their Memorandum in Support of Plaintiffs’ Motion for Summary Judgment that “ * * * no present need for equitable relief appears to exist.”1
*566The three-judge panel was convened pursuant to 28 U.S.C.A. §§ 2281, 2284. Section 2281 provides for such a court where an injunction is sought to restrain the enforcement of a State statute on the ground of its unconstitutionality. The section was adopted to reduce the dangers of single Federal judges’ enjoining State legislation, and was framed to apply only where injunctive relief was sought. See Swift & Co. v. Wickham, 382 U.S. Ill, 120, 127, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). Under the analogous provisions of 28 U.S.C.A. § 2282, dealing with Federal statutes, when plaintiffs seek only a declaration of the invalidity of legislation, without also “* * * affirmatively [seeking] to interdict the operation of a statutory scheme,” a single judge alone must hear the case. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 1371, 4 L.Ed.2d 1435 (1960). Since injunctive relief is no longer being sought in the present case, this Court should have dissolved itself into a single-judge court. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); see Smith v. State Executive Committee of Dem. Party of Ga., 288 F.Supp. 371, 374 (N.D.Ga.1968). But see Straut v. Calissi, 293 F.Supp. 1339, 1340 at n. 1 (D.N.J. 1968).
However, since the merits have been reached and disposed of by the majority in a manner with which I cannot agree, I must dissent.
First, Section 136(a) of the New York General Business Law does not appear to apply only to commercial uses of the United States Flag. Rather, it applies to the placing of “ * * * any word, figure, mark, picture, design, drawing, or any advertisement, of any nature upon any flag * * * of the United States * * *” when this is done “[i]n any manner, for exhibition or display * (Emphasis added). Read with the all-inclusive definition of a flag following subsection (g), it is apparent that the provision in question was intended to apply, and does apply, to the decals and buttons which plaintiffs seek to immunize from illegality. On a recognizable representation of the flag, including both the stars and the stripes, which are characteristic of the American Flag, as they would appear if the edges of the Flag were cut off in a circular manner, the plaintiffs have placed, “[i]n [some] manner, for exhibition [and] display * * * [a] figure, mark, picture, design, [or] drawing. * * * ” Here the statute reads in the disjunctive: “* * * or any advertisement * * suggesting that advertisements alone were not meant to be proscribed.
The majority suggests that numerous pictures of President John F. Kennedy on a background of the American Flag would be proscribed by § 136(a). However, these pictures would come under the exception provided in the second paragraph following § 136(g), which states that “This section shall not * * * be construed to apply to [an] ornamental picture, article of jewelry * * * on any of which shall be printed, painted or placed, said flag * * * disconnected and apart from any advertisement.” Indeed, this limited exception, which does not even apply to advertisements, suggests that except for representations of the flag which fall within it, all such representations are proscribed.
Since the decal and button designs are proscribed, the issue of the constitutionality of that proscription must be reached. I agree with the majority that the statute in general is constitutional, but I further conclude that the statute, as ap*567plied to these items, must be upheld. The special nature of the American Flag has been recognized in several decisions. See Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907); People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970). Indeed, the Supreme Court in Street v. New York, 394 U.S. 576, 594, 89 S.Ct. 1354, 1367, 22 L.Ed.2d 572 (1969) noted that “ * * * disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history.” The “peace symbol” or anything else superimposed upon the flag has the effect of destroying the integrity of the flag and reducing its status as “ * * * a special kind of personalty.” Id. at 616, 89 S.Ct. 1354 (Fortas, J., dissenting). The State has a legitimate interest in preserving the flag’s integrity from impingement by different groups which seek to turn it from its central purpose as a symbol of America to a symbol of their own special concerns.
Section 136(a) attempts to achieve that purpose by its provisions which are limited in their scope to prohibiting the conduct of placing and displaying . any mark upon the flag. No speech or communicative conduct is in any way restricted. Nor is the expression of any point of view on any issue, including the merits of the flag itself and what ~it stands for, limited. Unlike the statute in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), § 136(a) does not attempt to suppress the communication of any particular ideas, cf. United States v. O’Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) but, in a politically neutral manner only seeks to preserve the national banner. And, unlike the situation in Street v. New York, supra,, where the Court feared that the defendant may have been convicted for his words rather than his conduct, in a prosecution under § 136(a) speech can play no part.
. The full text of the statement reads:
“The defendant herein has represented to the court on several occasions that he will refrain from commencing prosecutions under Section 136(a) during the pendeney of these proceedings. He has also pledged to respect the determination of this court on the merits. Accordingly, no present need for equitable relief appears to exist. However, should changed cir*566cumstances require the exercise of equitable jurisdiction, this court possesses ample power to grant injunctive relief. Dombrowski v. Pfister, 380 U.S. 479, [85 S.Ct. 1116, 14 L.Ed.2d 22] (1965).”