concurring in the denial of certiorari and the dismissal of the appeal.
I join the denial of certiorari in No. 502, Misc., and the dismissal of the related appeal in No. 771, Misc., but only because Epton has been sentenced to serve three concurrent one-year terms: one for conspiring to riot, New York Penal Law (1944 and 1966 Cum. Supp.), §§ 580, 2090; one for advocating criminal anarchy, §§160, 161; and one for conspiring to engage in such advocacy, §§ 580, 160, 161. I think the riot conviction presents no substantial federal question,† and since the three sen*30tences were ordered to run concurrently, I conclude that these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction. See Hirabayashi v. United States, 320 U. S. 81, 85; Lanza v. New York, 370 U. S. 139. If the constitutionality of New York’s criminal anarchy laws were properly presented, however, I would vote to grant the petition for certiorari and note probable jurisdiction of the appeal, to reconsider the Court’s decision in Gitlow v. New York, 268 U. S. 652, and to decide whether the New York anarchy statutes, either on their face or as applied in these cases, violate the First and Fourteenth Amendments.
It is true that some of the acts relied upon by the State to establish the existence of a conspiracy to riot consisted of speeches *30made by Epton. Like my Brother Douglas, I think it is at least arguable that a State cannot convict a man of criminal conspiracy without first demonstrating some constitutionally unprotected overt act in furtherance of the alleged unlawful agreement. But the State in these cases presented proof that Epton had actively participated in the formation of a group dedicated to armed revolt against the police under the direction of “block captains” and with the assistance of “terrorist bands,” equipped with Molotov cocktails that Epton himself had explained how to use. In the context of this record, activities such as these can make no serious claim to constitutional protection.