(concurring specially):
Though concurring in the result my brothers have reached, I am impelled to uphold this conviction through a slightly different constitutional approach. I am less impressed by the distinction between speech and conduct than I am by the fact that the statute before us has a legitimate nonspeech objective.
I begin by noting that the statute under which the present conviction was obtained operates to preserve the integrity of the military uniform by restricting its use to authorized persons. Whatever the object of such a restriction, whether to protect against the possibility of military impersonation, or simply to safeguard the need for a sure and expedient means of military iden-*637tifieation, the restriction nonetheless has only the most remote and incidental effect upon free speech.
In order better to illustrate the remoteness of this impact on First Amendment rights, the present case is usefully compared to O’Brien v. United States, 1968, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. In O’Brien the Supreme Court held that a prohibition against the knowing mutilation or destruction of a draft card was not unconstitutional as applied to one who burned his draft card in protest against the war in Vietnam. The Court based its decision in large measure on the fact that the government had a substantial nonspeech related interest in seeing that draft cards were not destroyed.1
The government interest in seeing that uniforms are not worn by unauthorized persons is also nonspeeeh oriented. It is no more affected by the use of the uniform as a vehicle of protest than was the governmental interest in draft cards. In fact, it is reasonable to say that the statute before us has an even less inhibiting effect on free speech than the statute in O’Brien. At least the statute before us enjoins only the wearing of a military uniform, not its destruction. As such its violation is complete when the uniform is donned. The subsequent use of the uniform for protest purposes is entirely irrelevant to the statute’s real objectives. These objectives require that the patriot no less than the revolutionary, the bystander no *638less than the protester, forego the unauthorized wearing of the uniform. First Amendment rights do not suffer by the enforcement of such a statute.
Nothing in Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed. 2d 731, affects the constitutionality of the statute before us. In Tinker a school regulation banning the wearing of armbands to school was declared unconstitutional as an unreasonable restriction on free speech. While it seems plausible to say that the armband was no more or less a symbol of protest to its wearers than was the uniform in the case before us, the armbands, unlike the uniform and the draft cards, were not ap-pendant to any valid governmental interest.
There was, to be sure, a valid governmental interest in Tinker that required the preservation of order and discipline within the school, and this the Court acknowledged. But this interest was no more derivative from or inherent in armbands than in purely verbal criticism of the Vietnam war. In short, armbands are “akin to pure speech,” 393 U.S. at 505, 89 S.Ct. 733, because they generate no governmental interest apart from the message they communicate.
Uniforms and draft cards, on the other hand, are essential to purposes and perform secondary functions which have nothing to do with free speech. Since regulation of their use is not designed to also regulate attitudes toward them, cf. Stromberg v. People of State of California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, their enforcement will not imperil First Amendment freedoms. I am convinced that the statute before us was not conceived in the suppression of freedom of expression. I must therefore conclude that its nullification cannot be justified because its violation was birthed in protest.
I would also affirm the judgment of the district court.
. “This Court has held that -when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Watever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.” 391 U.S., at 376-377, 88 S.Ct. at 1678, 1679, 20 L.Ed.2d at 679-680.
* * * ■ t * *
“ * * * the governmental interest and the operation of the 1965 Amendment are limited to the noneommunicative aspect of O’Brien’s conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing a harm to the smooth and efficient functioning of the Selective Service System. When O’Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental in-interest. For this noneommunicative impact of his conduct, and for nothing else, he was convicted.
“The ease at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 [73 A.L.R. 1484] (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 noneommunicative conduct. See also, NLRB v. Fruit & Vegetable Packers Union, 377 U.S. 58, 79, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) (concurring opinion).
“In conclusion, we find that because of the Government’s substantial interest in assuring the continuing availability of issued Selective Service certificates, because amended § 462(b) is an appropriately narrow means of protecting this interest and condemns only the independent non-communicative impact of conduct within its reach, and because the non-communicative impact of O’Brien’s act of burning his registration certificate frustrated the Government’s interest, a sufficient governmental interest has been shown to justify O’Brien’s conviction.” 391 U.S. at 381, 382, 88 S.Ct. at 1681, 1682, 20 L.Ed.2d at 683.