(concurring, with whom Nolan and Lynch, JJ., join). I agree with the court that “under Federal constitutional law, the Commonwealth’s interest in protecting children permits the application of [G. L. c. 272,] § 29A to the defendant’s conduct.” Ante at 98. I agree that the conviction should be affirmed. I write separately only because in my view, the same view I expressed in Commonwealth v. Oakes, 401 Mass. 602, 605 (1988) (O’Connor, J., dissenting), vacated and remanded, 109 S. Ct. 2633, 2639 (1989), the court errs when it declares that “speech” requiring First Amendment analysis occurred in this case. The mere procuring or causing of a child to pose for photographs, not shown by the *100evidence nor even contended by the defendant to have been taken for display or distribution, is not speech. Conduct, of course, may constitute speech, but conduct that is not intended to communicate and that says nothing to anyone, as here, does not call for First Amendment-type analysis. The court relies primarily on State v. Helgoth, 691 S.W.2d 281 (en banc) (Mo. 1985), in support of its statement that the defendant’s actions in this case contain elements of speech. In fact, as I stated in my dissent in Oakes, supra at 609-610, Helgoth stands for the contrary proposition. In Helgoth, the defendant was convicted of taking posed photographs of a seventeen year old girl that focused on her uncovered breasts and vagina. The Supreme Court of Missouri stated that “the activity engaged in by the defendant and prohibited by the statute is distinctly conduct, as contrasted with speech. The offensive act is grounded in child abuse, and that is the epicenter of the case. The specific distinction to be made is between the use of children in the actual production of pornographic material and the ultimate dissemination of materials so produced.” Id. at 284. By stating otherwise in this case as to the defendant’s similar conduct, the court creates unwise precedent.