concurring in the judgment.
It is a crime in Massachusetts if one mutilates, tramples, defaces or “treats contemptuously” the flag of the United States. Appellee Goguen was convicted of treating the flag contemptuously, the evidence being that he wore a likeness of the flag on the seat of his pants. The Court holds this portion of the statute too vague to provide an ascertainable standard of guilt in any situation, including this one. Although I concur in the judgment of affirmance for other reasons, I cannot agree with this rationale.1
*584I
It is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is contemptuous conduct and that would be covered by the statute if directed at the flag. In these instances, there would be ample notice to the actor and no room for undue discretion by enforcement officers. There may be a variety of other conduct that might or might not be claimed contemptuous by the State, but unpredictability in those situations does not change the certainty in others.
I am also confident that the statute was not vague with respect to the conduct for which Goguen was arrested and convicted. It should not be beyond the reasonable comprehension of anyone who would conform his conduct to the law to realize that sewing a flag on the seat of his pants is contemptuous of the flag. The *585Supreme Judicial Court of Massachusetts, in affirming the conviction, stated that the “jury could infer that the violation was intentional . . . If he thus intended the very act which the statute forbids, Goguen can hardly complain that he did not realize his acts were in violation of the statute. “ [T]he requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.... [W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” Screws v. United States, 325 U. S. 91, 101-102 (1945).
If it be argued that the statute in this case merely requires an intentional act, not a willful one in the sense of intending what the statute forbids, then it must be recalled that appellee's major argument is that wearing a flag patch on his trousers was conduct that “clearly expressed an idea, albeit unpopular or unpatriotic, about the flag or about the country it symbolizes .... Goguen may have meant to show that he believed that America was a fit place only to sit on, or the proximity to that portion of his anatomy might have had more vulgar connotations. Nonetheless, the strong and forceful communication of ideas is unmistakable.” App. 13. Goguen was under no misapprehension as to what he was doing and as to whether he was showing contempt for the flag of the United States. As he acknowledges in his brief here, “it was necessary for the jury to find that appellee conveyed a contemptuous attitude in order to convict him.” I cannot, therefore, agree that the Massachusetts statute is vague as to Goguen; and if not vague as to his conduct, it is irrelevant that it may be vague in other contexts with respect to other *586conduct. “In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.” United States v. National Dairy Products Corp., 372 U. S. 29, 33 (1963). Statutes are not “invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” Id., at 32.
The unavoidable inquiry, therefore, becomes whether the “treats contemptuously” provision of the statute, as applied in this case, is unconstitutional under the First Amendment. That Amendment, of course, applies to speech and not to conduct without substantial communicative intent and impact. Even though particular conduct may be expressive and is understood to be of this nature, it may be prohibited if necessary to further a nonspeech interest of the Government that is within the power of the Government to implement. United States v. O’Brien, 391 U. S. 367 (1968).
There is no doubt in my mind that it is well within the powers of Congress to adopt and prescribe a national flag and to protect the integrity of that flag. Congress may provide for the general welfare, control interstate commerce, provide for the common defense, and exercise any powers necessary and proper for those ends. These powers, and the inherent attributes of sovereignty as well, surely encompass the designation and protection of a flag. It would be foolishness to suggest that the men who wrote the Constitution thought they were violating it when they specified a flag for the new Nation, Act of Jan. 13, 1794, 1 Stat. 341, c. 1, just as they had for the Union under the Articles of Confederation. 8 Journals of the Continental Congress 464 (June 14, 1777). It is a fact of history that flags have been associated with nations and with government at all levels, *587as well as with tribes and families. It is also a historical fact that flags, including ours, have played an important and useful role in human affairs. One need not explain fully a phenomenon to recognize its existence and in this case to concede that the flag is an important symbol of nationhood and unity, created by the Nation and endowed with certain attributes. Conceived in this light, I have no doubt about the validity of laws designating and describing the flag and regulating its use, display, and disposition. The United States has created its own flag, as it may. The flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it.
I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence. Neither would I find it beyond congressional power, or that of state legislatures, to forbid attaching to or putting on the flag any words, symbols, or advertisements.2 All of these objects, whatever their nature, are foreign to the flag, change its physical character, and interfere with its design and function. There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection.
II
1 would affirm Goguen’s conviction, therefore, had he been convicted for mutilating, trampling upon, or defacing the flag, or for using the flag as a billboard for *588commercial advertisements or other displays. The Massachusetts statute, however, does not stop with proscriptions against defacement or attaching foreign objects to the flag. It also makes it a crime if one “treats contemptuously” the flag of the United States, and Goguen was convicted under this part of the statute. To violate the statute in this respect, it is not enough that one “treat” the flag; he must also treat it “contemptuously,” which, in ordinary understanding, is the expression of contempt for the flag. In the case before us, as has been noted, the jury must have found that Goguen not only wore the flag on the seat of his pants but also that the act — and hence Goguen himself — was contemptuous of the flag. To convict on this basis is to convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas about the flag unacceptable to the controlling majority in the legislature.3
*589Neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag. West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). It is also clear under our cases that disrespectful or contemptuous spoken or written words about the flag may not be punished consistently with the First Amendment. Street v. New York, 394 U. S. 576 (1969). Although neither written nor spoken, an act may be sufficiently communicative to invoke the protection of the First Amendment, Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969), and may not be forbidden by law except when incidental to preventing unprotected conduct or unless the communication is itself among those that fall outside the protection of the First Amendment. In O’Brien, supra, the Court sustained a conviction for draft card burning, although admittedly the burning was itself expressive. There, destruction of draft cards, whether communicative or not, was found to be inimical to important governmental considerations. But the Court made clear that if the concern of the law was with the expression associated with the act, the result would be otherwise:
“The case at bar is therefore unlike one where the alleged governmental interest in regulating con*590duct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their 'opposition to organized government’ by displaying 'any flag, badge, banner, or device.’ Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct.” 391 U. S., at 382.
It would be difficult, therefore, to believe that the conviction in O’Brien would have been sustained had the statute proscribed only contemptuous burning of draft cards.
Any conviction under the ''treats contemptuously” provision of the Massachusetts statute would suffer from the same infirmity. This is true of Goguen’s conviction. And if it be said that the conviction does not violate the First and Fourteenth Amendments because Goguen communicated nothing at all by his conduct and did not intend to do so, there would then be no evidentiary basis whatsoever for convicting him of being “contemptuous” of the flag. I concur in the Court’s judgment.
There has been recurring litigation, with diverse results, over the validity of flag use and flag desecration statutes. Representative of the federal and state cases are the following: Thoms v. Hejjernan, 473 F. 2d 478 (CA2 1973); Long Island Vietnam Moratorium Committee v. Cahn, 437 F. 2d 344 (CA2 1970); United States v. Crosson, 462 F. 2d 96 (CA9), cert. denied, 409 U. S. 1064 (1972); Joyce v. United States, 147 U. S. App. D. C. 128, 454 F. 2d 971 (1971), cert. denied, 405 U. S. 969 (1972); Deeds v. Beto, 353 F. Supp. 840 (ND Tex. 1973); Oldroyd v. Kugler, 327 F. Supp. 176 (NJ 1970), rev’d, 461 F. 2d 535 (CA3 1972), abstention on remand, 352 F. Supp. 27, aff’d, 412 U. S. 924 (1973); Sutherland v. DeWulf, 323 F. Supp. 740 (SD Ill. 1971); Parker v. Morgan, 322 *584F. Supp. 585 (WDNC 1971); Crosson v. Silver, 319 F. Supp. 1084 (Ariz. 1970); Hodsdon v. Buckson, 310 F. Supp. 528 (Del. 1970), rev’d on other grounds sub nom. Hodsdon v. Stabler, 444 F. 2d 533 (CA3 1971); United States v. Ferguson, 302 F. Supp. 1111 (ND Cal. 1969); State, v. Royal, 113 N. H. 224, 305 A. 2d 676 (1973); State v. Zimmelman, 62 N. J. 279, 301 A. 2d 129 (1973); State v. Spence, 81 Wash. 2d 788, 506 P. 2d 293, probable jurisdiction noted, 414 U. S. 815 (1973) (sub judice); City of Miami v. Wolfenberger, 265 So. 2d 732 (Fla. Dist. Ct. App. 1972); State v. Mitchell, 32 Ohio App. 2d 16, 288 N. E. 2d 216 (1972); State v. Liska, 32 Ohio App. 2d 317, 291 N. E. 2d 498 (1971); State v. Van Camp, 6 Conn. Cir. 609, 281 A. 2d 584 (1971); State v. Waterman, 190 N. W. 2d 809 (Iowa 1971); State v. Saulino, 29 Ohio Mise. 25, 277 N. E. 2d 580 (1971); Deeds v. State, 474 S. W. 2d 718 (Crim. App. Tex. 1971); People v. Radich, 26 N. Y. 2d 114, 257 N. E. 2d 30 (1970), aff’d by an equally divided court, 401 U. S. 531, rehearing denied, 402 U. S. 989 (1971); People v. Cowgill, 274 Cal. App. 2d 923, 78 Cal. Rptr. 853 (1969), appeal dismissed, 396 U. S. 371 (1970); Hinton v. State, 223 Ga. 174, 154 S. E. 2d 246 (1967), rev’d on other grounds sub nom. Anderson v. Georgia, 390 U. S. 206 (1968).
For a treatment of statutes protective of the flag, see Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash. U. L. Q. 193.
Massachusetts has not construed its statute to eliminate the communicative aspect of the proscribed conduct as a crucial element of the violation. In Stale v. Royal, 113 N. H. 224, 305 A. 2d 676 (1973), the New Hampshire Supreme Court, noting among other things that the State has a valid interest in the physical integrity of the flag, rejected a facial attack on its flag desecration statute, which made it a crime to publicly mutilate, trample upon, defile, deface, or cast contempt upon the flag. The court construed the statute to be “directed at acts upon the flag and not ‘at the expression of and mere belief in particular ideas.’ ” Id., at 230, 305 A. 2d, at 680. The proscription against casting contempt upon the flag was to be understood as a general prohibition of acts of the same nature as the previously forbidden acts of mutilation and defacement, not as a proscription of the expression of ideas. Thus:
"Our statute is more narrowly drawn than some flag statutes. It deals only with the flag itself or any 'flag or ensign evidently purporting to be’ the flag. State v. Cline, [113 N. H. 245], 305 A. 2d 673, decided this date. Also, as we construe it, our statute prohibits only acts of mutilation and defilement inflicted directly upon the flag *589itself and does not prohibit acts which are directed at the flag without touching it. The statute enumerates specific acts of flag desecration, namely ‘mutilate, trample upon, defile, deface/ all of which involve physical acts upon the flag. The general term ‘cast contempt’ follows these enumerated specific acts. We hold that the phrase ‘or east contempt by . . . acts’ as used in RSA 573:4 is limited to physical abuse type of acts similar to those previously enumerated in the statute. 2 Sutherland, Statutory Construction § 4909 (3d rev. ed. Horack 1943); State v. Small, 99 N. H. 349, 111 A. 2d 201 (1955); State v. N. H. Gas & Electric Co., 86 N. H. 16, 163 A. 724 (1932).” Id., at 227, 305 A. 2d, at 679.