dissenting.
I would reverse the conviction on count I, which is laid under 18 U.S.C. § 241. This disposition would make it unnecessary to discuss count III, involving the use of fire in any conduct which is a felony under federal law.
As to count I, I take it as a given, and the Court’s opinion does not seem to disagree, that the act of cross burning, as it occurred in this case, was expressive conduct. It was intended to convey a message, an idea: “We do not like black people, and we want them to move out,” or something of the sort. This kind of communication, no matter how hateful, is “speech” within the meaning of the First Amendment. It is entitled to protection from governmental sanction just as much as speech of which we might approve.
The Court takes the position that § 241, as applied to expressive conduct, is content neutral. For purposes of analysis in the present case, I will accept this characterization. The statute does prohibit threats and intimidation of all kinds, regardless of *959the particular viewpoint of the speaker or actor. Section 241, on its face, is not directed to cross burning as such or any other particular form of conduct, but rather to conspiracies of all kinds to threaten or intimidate others in the exercise of a federal right. Moreover, the black residents of the housing in question had a federal right to live there, and there is evidence in this record sufficient to support a finding that burning of a cross in full view of this apartment complex was intended to, and did in fact, cause at least some of the black residents to be afraid. Still, something is lacking, in my opinion, to justify the application of the statute, as against a First Amendment challenge, on this record.
One of the requirements of the test set out in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), is that the statute be narrowly tailored to advance the governmental interest in question, that “the incidental restriction on alleged First Amendment freedoms [be] no greater than is essential to the furtherance of that interest.” This statute, though, is not narrowly tailored, as I understand that requirement.
First, it is necessary to define the governmental interest involved, and to do so in a way that does not itself transgress the First Amendment. I would define the interest as follows: the right to be free of physical force, or threats of physical force. Section 241, of course, says nothing about force. It speaks only of intimidation, and, as defined in the jury instructions given by the District Court here, this concept covers “a variety of conduct intended to harm, frighten, punish, or inhibit the free action of other persons. To ‘threaten’ or ‘intimidate’ does not require a threat of physical force or the intimidation of physical fear.” Such a definition, I think, is much too broad, because it would criminalize a great deal of conduct, some of it pure speech, which does no more than forcefully state a view that others find revolting or appalling. To uphold the statute as construed in this way is wholly inconsistent with First Amendment values we have long cherished. Those values include speech which “is often vituperative [and] abusive,” Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1402, 22 L.Ed.2d 664 (1969).
Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), is an excellent example. There, the conviction of a member of the Ku Klux Klan under a criminal syndicalism statute was reversed. The defendant had participated in a Ku Klux Klan rally involving a number of hooded figures, some of whom carried weapons. A cross was burned, and threats to “bury” black people were discussed. The message was disseminated' on television. A similar case, though involving the other end of the political spectrum, is NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), which involved a boycott of merchants accompanied by a threatening statement specifically advocating physical violence. See also Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978) (Nazi Party march through a heavily Jewish' city held protected by the First Amendment). The law seems to be this: even speech that advocates violence is protected by the First Amendment, unless the likelihood of actual violence crosses some constitutionally derived line.
Here, as I have noted, the District Court explicitly told the jury, over defendant’s objection, that neither force nor the threat of force was required, and that they could convict if they found defendant’s actions so much as “inhibit[ed] the free action of other persons.” I suggest that a great deal of speech is sufficiently forceful or offensive to inhibit the free action of persons against whom it is directed, in the sense that it would make someone hesitate before acting in a certain way. Indeed, that is the very purpose of the speech: to influence others’ conduct. In the present case, the point is neatly made by the fact that the jury acquitted defendant of count II, interference with housing rights in violation of 42 U.S.C. § 3631(a), an offense that contains as one of its elements force or the threat of force. It seems highly likely, though we of course cannot be certain, that the jury did not think the present record indicated ei*960ther imminent actual force or the threat of force. It thought, instead, that intimidation of some lesser form had taken place.
If, instead of burning a cross, an act especially odious because of its historical antecedents, the defendant had distributed leaflets in the Tamarack Apartments, stating that the Ku Klux Klan was in the neighborhood, disliked black people, and wanted them to move out, the black residents of the apartments could well have been threatened or intimidated in the sense allowed by the District Court’s instructions to the jury in this case. Yet, the same “captive audience” theory advanced by the Court here, ante at 956, would apply to such a case. If the cross had been burned on the apartment complex’s own property, the Court would be closer to Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (upholding ordinance banning picketing targeted at a single dwelling in a residential area), but the cross was nearly 400 feet away and on someone else’s land. Whatever the limits of the “captive audience” principle may be, I would not extend it this far.
For these reasons, I respectfully dissent. The result would not be dismissal of the indictment, but only a new trial, at which the jury would be instructed that it could not convict on count I unless it found that the threats and intimidation involved an imminent use of force, or at least caused the residents of Tamarack Apartments to fear that force was imminent.
Order
Aug. 14, 1991
Appellant’s petition for rehearing with suggestion for rehearing en banc has been considered by the court and is granted as to Count I only. The opinion and judgment of this court filed June 10, 1991, are hereby vacated as it pertains to Count I. The parties may file supplemental briefs not to exceed fifteen pages within two weeks from the date of this order. The clerk will notify the parties of the time and place of oral argument at a later date.