OAKES, Circuit Judge: ■
This appeal to a court of appeals from the judgment of a three-judge district court declaring a Connecticut flag misuse statute unconstitutional raises several difficult questions of appellate and trial court jurisdiction and procedure, as well as the more usual first amendment problems on the merits. The decision below is reported sub nom. Thoms v. Smith, 334 F.Supp. 1203 (D.Conn.1971).
I. APPELLATE JURISDICTION
The threshold question we have —one not argued by the parties in their briefs — relates to the jurisdiction of a court of appeals over an appeal from a three-judge court. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963); Borden Co. v. Liddy, 309 F.2d 871, 876 (8th Cir. 1962), cert. denied, 372 U.S. 953, 83 S. Ct. 951, 9 L.Ed.2d 977 (1963). The problem stated simply is whether an appeal lies to us when the three-judge court has declared the state statute unconstitutional but neither expressly granted nor denied the injunctive relief sought by the prevailing plaintiff. The problem is complicated to some extent by the fact that there apparently has been no separate judgment order signed below — rather there is a memorandum of decision signed by Chief District Judge Blumenfeld, concurred in by Circuit Judge Smith, from which District Judge Clarie dissented. Judge Blumenfeld’s opinion says:
We have no reason to believe defendants will continue to enforce § 53-255 upon notice of this decision; accordingly, we forbear to enter an injunction restraining them from enforcing it. Declaratory judgment may, however, enter that Section 53-255 of the Connecticut General Statutes is unconstitutional and is hereby declared void because it makes criminal that which under the Constitution may not be made a crime.
[480] So ordered.
334 F.Supp. at 1211.
Since the plaintiff originally sought injunctive relief with jurisdiction being asserted under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), against the alleged unconstitutional “enforcement, operation or execution” of a state statute, the convening of a three-judge court was required by 28 U.S.C. § 2281. If we construe the operative language of the district court’s opinion as “an order granting or denying ... an interlocutory or permanent injunction” the appellant’s appeal from the district court’s decision must be directly to the Supreme Court and we would be without jurisdiction to hear. it. 28 U.S.C. §. 1253; Lee v. Roseberry, 200 F.2d 155 (6th Cir. 1952). If, however, we construe the district court’s “forbearance” in granting injunctive relief as merely a postponement of decision and not a “granting or denial,” appeal to us would be proper and indeed required since the district court’s decision would, in effect, be a declaratory judgment on the constitutionality of the state statute.1 See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); see also Gunn v. University Committee to End the War in Vietnam, 399 U.S. 383, 391, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970) (White & Brennan, JJ., concurring).
The latter construction is con- . sistent with the Supreme Court’s admonition that its jurisdiction of appeals from three-judge courts is to be “narrowly construed,” Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970), since “any loose construction of the requirements of [the predecessor of § 1253 authorizing direct Supreme Court review] would defeat the purposes of Congress ... to keep within narrow confines [the Supreme Court’s] appellate docket.” Phillips v. United States, 312 U.S. 246, 250, 61 S. Ct. 480, 483, 85 L.Ed. 800 (1941), quoted in Gunn v. University Committee to End the War, supra, 399 U.S. at 387, 90 S.Ct. 2013, and Goldstein v. Cox, supra, 396 U.S. at 478, 90 S.Ct. 671. This admonition, we think, requires us to resolve all reasonable doubts against direct appealability of a judgment to the Supreme Court.
This construction is also consistent with the obvious intent of the three-judge court in this ease. The operative language of Chief Judge Blumenfeld’s opinion leaves open the possibility that injunctive relief will be granted in the event that the district court was gazing [481] into a clouded crystal ball in predicting non-enforcement of the statute by the appellant and the other defendants below. No other basis for the denial of injunctive relief appears in the opinion. Until the district court explicitly grants or denies an injunction “it is simply not possible to know with any certainty what the court has decided” and one of the “basic reasons” for the limitations § 1253 places on Supreme Court review is defeated. Gunn v. University Committee to End the War, supra, 399 U.S. at 388-390, 90 S.Ct. 2013. In the present state of the ease no one knows if an injunction will ever be required, let alone against whom such an injunction might run. In such circumstances appeal lies directly to us as if only a declaratory judgment and not an injunction were sought in the first instance. Cf. Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 152-155, 83 S.Ct. 554; Flemming v. Nestor, 363 U.S. 603, 606-607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In this respect, this case is unlike Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), where direct appeal to the Supreme Court lay, even though the three-judge court dismissed for lack of subject matter jurisdiction, because there the three-judge court entered a judgment “denying all relief sought by plaintiffs.” 405 U.S. at 541, n. 5, 92 S.Ct. at 1116.
This case is also unlike Abele v. Mar-kle, 342 F.Supp. 800 (D.Conn.1972) (three-judge court), where the court of appeals, as Judge Timbers’ dissent points out, remanded for reconsideration by the district court of the question whether to grant injunctive relief. Abele v. Markle, Docket No. MR-5241 (2d Cir., May 9, 1972). In Abele the two-member majority of the district court were opposed on the issue of granting injunctive relief, compare 342 F.Supp. at 804-805 (Lumbard, C. J.) with id. at 812 (Newman, J.); here the majority were agreed that they should forbear. We do not think the action of the majority below was an attempt to “determine the court to which it [sent] its appellate business,” in the language of the dissent. Rather, we assume that action to have been motivated by regard for comity, avoiding the direct confrontation between federal court and state prosecutorial authority that issuance of an injunction would effect by the more abstract (if equally effective) procedural step of issuing a judgment only declaring the statute unconstitutional. That this has the incidental effect of determining which appellate court has jurisdiction is an anomaly of the three-judge court statutes, note 1 supra, over which we have no control.
II. FINALITY
Theoretically more proceedings are possible in the district court should appellant and the other defendants below seek to enforce the statute. See note 1 supra. Thus, it might be argued that the district court’s declaration is not “a final judgment” in this case and that we are accordingly without jurisdiction to hear this appeal under 28 U.S.C. § 1291. Of course, if this were an action instituted solely for declaratory relief the district court’s decision on that relief would be final and appealable. 28 U.S. C. § 2201. The fact that further proceedings leading to an injunction are possible below does not render the judgment of the district court in this case any less final.
The declaration of unconstitutionality of the statute by the district court resolves the critical issue in this litigation. There will be no further proceedings in the district court should its ruling on the constitutionality of the statute be overturned on appeal; there likely will be none should its ruling be upheld. As this case comes to us, the question of constitutionality is the controlling question. See Mills v. Alabama, 384 U.S. 214, 217-218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Local 438, Construction Laborers’ Union v. Curry, 371 U.S. 542, 550-551, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963) (alternate holding); Pope v. Atlantic Coast Line Railroad Co., 345 U.S. 379, 382, 73 S.Ct. 749, 97 L.Ed. 1094 [482] (1953). See generally C. Wright, Law of Federal Courts 457 (2d ed. 1970). Moreover, our determination of the correctness of the district court decision is “fundamental to the further conduct of the case.” Uni ted. States v. General Motors Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). See also Gillespie v. United States Steel Corp., 379 U.S. 148, 153-154, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). It would be anomalous to treat the order here as a declaratory judgment for purposes of deciding the proper court to which an appeal should be taken and then decide we have no jurisdiction to hear the appeal on the central issue in the case because the judgment lacks “finality.”
The practical considerations which the Supreme Court has considered important in determining issues of finality point to a holding that the district court’s order is final. Extra expense to all parties would ensue were we to remand for future proceedings in the district court. Gillespie v. United States Steel Corp., supra, 379 U.S. at 153, 85 S.Ct. 308. But e'ven more important, there would be incalculable delay in determining the constitutionality of this statute. This additional delay is in and of itself troublesome, Mills v. Alabama, supra, 384 U.S. at 217-218, 86 S.Ct. 1434, and is ground for determining a doubtful ease in favor of finality. In a case like this one, however, involving first amendment rights which are allegedly chilled by a state statute unconstitutional on its face, delay would be even more disturbing. Cf. Part V of this opinion, infra.
We thus hold that the district court’s order was a “final judgment” within 28 U.S.C. § 1291.
III. THE PROPRIETY OF DECLARATORY RELIEF
Construing the district court’s order solely as a declaration that the Connecticut flag statute is unconstitutional does not, however, end the prelim--inary issues to be decided before the constitutionality of the statute may be considered. There is an important issue whether declaratory relief is appropriate or whether appellee, who alleges his first amendment rights are “chilled” by the existence of the statute, has an adequate remedy at law in the state courts. In Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), a companion case to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that federal courts are precluded from issuing declaratory judgments on the constitutionality of state statutes when there are pending criminal proceedings involving the declaratory plaintiff and challenged statute in state courts, absent a showing that the state prosecution is being brought in bad faith. The question here is whether the Samuels holding extends to the situation where there may be a pending state prosecution but it is not pending against the federal plaintiff himself.2
In answering this question, we recognize that Younger, Samuels and their companion cases place some restrictions on anticipatory challenges to state statutes based on their alleged “chilling” of first amendment rights, challenges first permitted by Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). See Note, Implication of the Younger Cases for the Availability of Federal Equitable Relief When No State Prosecution Is Pending, 72 Colum.L.Rev. 874, 880-89 (1972) (hereinafter cited as Columbia Note). There are suggestions in dictum in the Younger group of cases that, absent a showing of bad faith enforcement on the part of state officials, federal courts should not “reach out” and declare state statutes unconstitutional on their face. See Younger v. Harris, supra, 401 U.S. at 52, 91 S.Ct. 746 at 754 (on its face adjudication is “fundamentally at odds with the function of the federal courts in our consti[483] tutional plan”); Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); The Supreme Court — 1970 Term, 85 Harv.L.Rev. 3, 304-05 (1971); Columbia Note, supra at 890-92. Yet, it is our view that the Supreme Court intended to leave open the question whether the requirement of bad faith or of other extraordinary circumstances evidencing irreparable injury, which the Younger group of eases affirmed for anticipatory federal court intervention in pending state suits, applies when no state criminal prosecution is pending against the federal plaintiff. See Younger v. Harris, supra, 401 U.S. at 41, 91 S.Ct. at 749, (“We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun”) and at 55, 91 S.Ct. 746 (Stewart & Harlan, JJ., concurring); Samuels v. Mackell, supra, 401 U.S. at 73-74, 91 S. Ct. 764; Columbia Note, supra at 891-92. See also Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 1757, 32 L.Ed.2d 257 (1972) (“[I]n the absence of a pending state proceeding . . . exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met”).
Furthermore persuasive policy considerations suggest that the pendency of criminal proceedings in the state courts against others should not prevent the appellee from obtaining federal anticipatory relief. See generally Perez v. Ledesma, 401 U.S. 82, 120-122, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinions). If federal anticipatory relief were not available, individuals like the appellee in this case would be forced to engage in what they believe is activity protected by the first amendment under the threat of criminal prosecution. Absent the overruling of Dombrowski v. Pfister, supra, and Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the situation here, where no state prosecution is pending against the individual, is one without the reach of Younger and brethren. When there is no state prosecution pending the individual must linger in uncertainty as to the protected nature of his planned activity and he is subject wholly to the discretion of state officials. Columbia Note, supra at 892. A pending state prosecution at least provides him with a concrete way of resolving doubts about his constitutional rights, whereas such a pending prosecution against another would not necessarily have such an effect.
Additionally, federal court interference with state administration of its criminal law, the basic comity concern underlying the Younger group of cases, is minimized when no state prosecution is pending against the federal plaintiff. The state has not yet committed its criminal justice resources to the prosecution of the particular case and the allegedly “chilled” individual should be able to choose a federal forum for protection of his constitutional rights. The Supreme Court — 1970 Term, supra at 307-08. A choice of a federal forum to vindicate first amendment rights is entitled to significant weight in determining the availability of anticipatory relief. See Ex parte Young, 209 U.S. 123, 165, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Wisconsin v. Constantineau, 400 U. S. 433, 437-439, 91 S..Ct. 507, 27 L.Ed.2d 515 (1971).
We thus hold that the district court could properly issue a declaration on the Connecticut statute’s constitutionality.
IV. JUSTICIABILITY
But questions concerning appellee’s standing to maintain this action and the ripeness of this controversy for judicial action, which we will group together under the rubric of “justiciability,” remain.3 The question is the same [484] under the Declaratory Judgment Act requirement that there be an “actual controversy” that is ripe for decision. 28 U.S.C. § 2201. See Lake Carriers’ Association v. MacMullan, supra, 406 U.S. at 506, 92 S.Ct. 1749; Golden v. Zwickler, 894 U.S. 103, 108, 89 S.Ct. 956, 22 L. Ed.2d 113 (1969); see generally, Note, Declaratory Relief in the Criminal Law, 80 Harv.L.Rev. 1490, 1507-09 (1967). Appellant argues that appellee’s position is “essentially identical” to that of the unindicted plaintiffs in Younger. Those plaintiffs had intervened in a federal court anticipatory injunction action challenging the constitutionality on its face of the California Criminal Syndicalism Act; the action, it will be recalled, had been brought by one Harris, and a state indictment under the Act had already been issued against him. The in-tervenors based their complaint on the fact they “felt inhibited” by the existence of the statute and the prosecution of Harris. The Supreme Court held their inhibitions were insufficient to invoke the equitable jurisdiction of the federal courts to enjoin a pending state prosecution. 401 U.S. at 42, 91 S.Ct. 746. Appellant also relies on another of the companion cases to Younger, Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), in which the Court reversed a three-judge court’s injunction against enforcement of a state anti-intimidation criminal statute because none of the plaintiffs had been prosecuted or arrested under that particular statute, or specifically threatened with prosecution or arrest.
In analyzing the validity of appellant’s contentions, it is necessary to examine whether there is a likelihood that state prosecutions will be brought under the challenged statute against appellee. Ap-pellee by letter informed appellant and defendants below, who are prosecutors and police chiefs, that he owned a vest fashioned from a 3' by 5' American flag and that he “would like to be able to wear” the vest to protest American Southeast Asia policies. Three of the law enforcement officials so informed did not respond, two indicated by telephone their intent to enforce the statute, one of them saying, “. . . go ahead and do it, and, ... if you’re in violation of the statute we’ll [485] lock you up.” Furthermore, there had been a series of prosecutions against persons symbolically expressing their views on various subjects, resulting in jail sentences in two instances and fines in three others. Two of these prosecutions resulting in convictions involved a peace symbol superimposed upon or substituted for the stars in the flag. Other prosecutions involving automobiles painted red and blue with white stars, red and blue shoes and shirts with white stars, and even a green and white ecology flag, were either still pending or had recently been nol prossed.
Thus, appellee faced a “credible threat of enforcement” if he fulfilled his “plausible allegations of intent or desire” to engage in first amendment protected activities. National Student Association, Inc. v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d 1103, 1111 (1969). Cf. Abele v. Markle, 452 F.2d 1121, 1125 (2d Cir. 1971) (threat of enforcement of state anti-abortion statute held sufficient to grant standing to medical professionals). This very real threat of enforcement against the appellee distinguishes him from the unindicted plaintiffs in Younger, who intervened to enjoin Harris’s prosecution, not their own. Indeed, Justice Black stated in the opinion of the Court (401 U.S. at 42, 91 S.Ct. at 749):
If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true — either on the admission of the State’s district attorney or on any other evidence — then a genuine controversy might be said to exist.
See 401 U.S. at 57-58, 91 S.Ct. 746, 27 L.Ed.2d 669 (Brennan, J., concurring). This threat of enforcement also insures appellee’s interest in this suit is not “mere meddling,” Note, Declaratory Relief in the Criminal Law, supra at 1508, and thus distinguishes him from the plaintiffs in Boyle. To deny appellee anticipatory relief here would in effect mean that anticipatory federal relief against overbroad state statutes could be obtained only in the instance of a showing of “bad faith, harassment, or any other unusual circumstance. . . .” 401 U.S. at 54, 91 S.Ct. at 755. Individuals who fear their conduct could be punished under such a statute- would thus either suffer a “chill” or subject themselves to the risk of criminal prosecution. As we said in Part III of this opinion, we do not think the Younger group of cases goes quite so far.
V. ABSTENTION
Appellant argues next that the district court should have abstained since the constitutional issues appellee raised below were pending at the time of suit here in the Connecticut appellate courts. In fact, they have since been decided. State v. Van Camp, 6 Conn.Cir. 609, 281 A.2d 584, certification of appeal denied, 161 Conn. 591, 280 A.2d 536 (1971) (upholding constitutionality of state statute on its face). Appellant adds that appellee, or any other member of his class, could have participated in these state court cases by filing amicus briefs both in the Connecticut courts and ultimately in the United States Supreme Court. For a variety of reasons we reject appellant’s contentions.
First, although appellant has cited some older cases in which the Supreme Court ordered abstention even though a first amendment related claim was raised, cf. Douglas v. City of Jeannette, 319 U.S. 157, 163-164, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), those cases were decided before the full development of the “chilling effect” doctrine in Dombrowski v. Pfister, supra, and its progeny. Since that development this circuit has recognized that “[i]n cases involving a challenge that [a state] statute is on its face unconstitutional, the delay of state court proceedings might itself cause an impermissible chilling of the very constitutional rights which the plaintiff seeks to protect.” Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344, 347 (2d Cir.), cert. denied, 400 U.S. 956, 91 S.Ct. 353, 27 L.Ed.2d 264 (1970). As we have said, comity con[486] cerns are minimized because no state prosecution is pending against this ap-pellee. See The Supreme Court — 1970 Term, supra, at 308 n.39; Columbia Note, supra at 893.
Second, appellant’s argument about the availability of amicus procedures in the Connecticut state courts to appellee and members of his class misses the critical point, that appellee’s choice of a federal forum to vindicate his first amendment rights must be given “due respect.” Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. 391, 19 L.Ed.2d 444. See also Lake Carriers’ Association v. MacMullan, supra, 406 U.S. at 510, 92 S.Ct. 1749, 32 L.Ed.2d 257; Long Island Moratorium Committee v. Cahn, supra, 437 F.2d at 347. When such important national rights as first amendment freedoms are at stake, there “should not be the slightest risk of nullification by state process,” C. Wright, supra at 197 citing Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 230 (1948), at least where the individual has chosen a federal forum to protect them.
Finally, there is now no practical reason to abstain. Despite appellant’s abstention contentions below, the district court decided the merits of the case, and it would be “unusual indeed,” Holmes v. New York City Housing Authority, 398 F.2d 262, 266 (2d Cir. 1968), were we as an appellate court not to do so. The argument for abstention had more force below because the issue of the constitutionality of the statute was then pending on the appeal of criminal convictions in the state courts. Now that the state courts have upheld the statute on its face, State v. Van Camp, supra, there is no chance that the federal constitutional questions raised by the statute can be avoided by a state decision narrowing the statute’s scope to be rendered in the near future. Thus the classical rationale for abstention, see C. Wright, supra at 197-98, and cases like Askew v. Har-grave, 401 U.S. 476, 91 S.Ct. 856, 28 L. Ed.2d 196 (1971) cited by appellant are inapplicable.
We thus hold that the district court properly decided the merits of this ease.
VI. THE MERITS
Perhaps the issue with which we have the least difficulty is that of constitutionality itself. This would not be the case as Judge Smith’s concurrence below demonstrates, 334 F.Supp. at 1211-1212, were it not for Long Island Vietnam Moratorium Committee v. Cahn, supra. The Connecticut statute here involved is substantially indistinguishable from the New York statute there declared unconstitutional,4 in that it is so broadly drawn as to proscribe protected symbolic speech (there a peace symbol was superimposed upon a representation of the flag itself), is overly vague and is not severable into flag misuse and flag defilement or destruction parts. Accord, Parker v. Morgan, 322 F.Supp. 585 (W.D.N.C.1971) (three-judge court) (North Carolina police regulation); Crosson v. Silver, 319 F. Supp. 1084 (D.Ariz.1970) (three-judge court) (Arizona state statute); Hods-don v. Buckson, 310 F.Supp. 528 (D. Del.1970) (three-judge court) (Delaware state statute). See generally Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv. L.Rev. 1130, 1138-41 (1972). Cf. Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (statute cannot ban verbal desecration; four dis[487] senters think it constitutional to ban physical desecration). But see Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972) (federal flag statute); Sutherland v. DeWulf, 323 F.Supp. 740 (S.D. Ill.1971) (three-judge court) (Illinois state statute); Oldroyd v. Kugler, 327 F.Supp. 176 (D.N.J.1970) (three-judge court) (New Jersey state statute); United States v. Ferguson, 302 F.Supp. 1111 (N.D.Cal.1969) (federal flag statute). Cf. Radich v. New York, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287 (1971) (per curiam) (state conviction for physical desecration affirmed by an equally divided court). We agree with the majority of the three-judge court that the Connecticut statute in its present form is unconstitutional.
Our decision is not intended to indicate any view as to the constitutionality of a statute that might be limited to prohibition of the destruction or damaging of the flag, as distinguished from misuse.
Judgment affirmed.