concurring.
If the Court were prepared to re-examine this area of the law, I would vote to reverse this conviction with instructions to dismiss the indictment. See Marks v. United States, 430 U. S. 188, 198 (Stevens, J., concurring and dissenting); Smith v. United States, 431 U. S. 291, 311 (Stevens, J., dissenting); Splawn v. California, 431 U. S. 595, 602 (Stevens, J., dissenting); Ward v. Illinois, 431 U. S. 767, 777 (Stevens, J., dissenting) . But my views are not now the law. The opinion that The Chief Justice has written is faithful to the cases on which it relies. For that reason, and because a fifth vote is necessary to dispose of this case, I join his opinion.
Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join.I concur in the judgment reversing petitioner’s conviction. However, because I adhere to the view that this statute is “ 'clearly overbroad and unconstitutional on its face,’ ” see, e. g., Millican v. United States, 418 U. S. 947, 948 (1974) (Brennan, J., dissenting), quoting United States v. Orito, 413 U. S. 139, 148 (1973) (Brennan, J., dissenting), I would *306not remand for further consideration but rather with direction to dismiss the indictment.