concurring and dissenting, with whom LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, join.
I would think there could be little doubt that error in the court’s instruction requires reversal of defendant’s conviction for conspiracy under 18 U.S.C. § 241. We therefore join in the result reached by Judge John R. Gibson’s opinion. However, we would go further and hold that there exists insufficient evidence to sustain a-retrial on the conspiracy count.
In the present case the district court expressly instructed the jury that to threaten or intimidate under § 241 did not require “a threat of physical force or the intimidation of physical fear.” Clearly this was fundamental error. The First Amendment protects speech including “virulent ethnic and religious epithets.” United States v. Eichman, 496 U.S. 310, 318, 110 S.Ct. 2404, 2409, 110 L.Ed.2d 287 (1990). In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 902, 102 S.Ct. 3409, 3420, 73 L.Ed.2d 1215 (1982), Charles Evers (the Field Secretary of the NAACP in Mississippi) gave a speech calling for a boycott of white-owned businesses in which he threatened “[i]f we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The Supreme Court held this threat to be protected speech. Id. at 927, 102 S.Ct. at 3433.1
*1305My disagreement with the majority opinion is (1) it fails to distinguish between the conspiracy conviction under Count I, upon which Lee was convicted .and Count II, the substantive charge under 42 U.S.C. § 3631(a) (1988)2 of which the defendant was acquitted; and in doing so (2) it fails to evaluate the total lack of evidence to sustain the conspiracy count.
There can be little question that § 241 as applied in the present case focuses on Lee’s expressive conduct, to wit, the burning of the cross. Lee did not verbally threaten or intimidate anyone. He burned a cross “to take a stand” and “maybe ... bad blacks ... would take the message seriously ' and leave.”3
It is difficult to infer that Lee, in burning the cross, was advocating the use of force or violence. However, even if such an obscure inference may imply that this was his intent, the Supreme Court has made clear “the mere advocacy of use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne, 458 U.S. at 927, 102 S.Ct. at 3433 (emphasis in original).
In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), white supremacists burned a cross and gave speeches with express threats to “bury the niggers.” Id. at 446 & n. 1, 89 S.Ct. at 1829 n. 1. The defendant arranged for a television station'to broadcast the cross burning and the speeches. He was convicted under the Ohio Criminal Syndicalism statute. The Supreme Court reversed the conviction, finding the defendant’s conduct, although highly intimidating, nevertheless protected tinder the First Amendment. The Court made clear that:
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is, likely to incite or produce such action.
Id. at 447, 89 S.Ct. at 1829.
The majority’s analysis focuses on two recent cases—Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), and Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)—reasoning that violation of First Amendment rights “depends on the likely communicative impact” of the conduct involved. In Boos, the Court noted that the government’s justification for the ordinance at issue focused on the “direct impact” of the speech on its audience. 485 U.S. at 321, 108 S.Ct. at 1163-64. Similarly, in Johnson the issue of whether the burning of the flag violated the law depended on the “likely communicative impact of [Johnson’s] expressive conduct.” 491 U.S. at 411, 109 S.Ct. at 2543.
Unlike the present case, Johnson and Boos did not involve the conspiracy under 18 U.S.C. § 241. Johnson was charged with desecration of a venerated object (the flag) in violation of Texas Penal Code Ann. § 42.-09(a)(3) (1989). The only evidence offered by the state to show the communicative impact of the flag burning was the testimony of several persons, who stated that it had seriously offended them. Id. at 408, 109 S.Ct. at 2541. No disturbance of the peace actually *1306occurred or threatened to occur because of Johnson’s flag burning. Id. The Court pointed out that the mere possibility of a breach of the peace was not sufficient to punish symbolic advocacy expressing dissatisfaction over “conditions as they are.” Id. at 408-09, 109 S.Ct. at 2541-42.
Boos similarly did not involve a conspiracy. Boos was charged under § 22-1115 of the District of Columbia Code prohibiting display of odious signs within 500 feet of a foreign embassy. 485 U.S. at 315, 108 S.Ct. at 1160. In holding the display clause unconstitutional, the Court, found the regulation to be a content-based restriction and held that the emotive impact of speech was not a “secondary effect.” Id. at 321, 108 S.Ct. at 1164.
If the present appeal addressed the sufficiency of the evidence of the substantive offense under § 3631(a),4 Johnson and Boos would require a finding that there was insufficient evidence on the record before us to sustain the conviction. Indeed, the jury agreed when it acquitted Lee of violating this section. The evidence shows that Lee’s conduct in burning the cross was not directed to inciting imminent lawless action.' Lee placed the cross not in front of a particular family’s apartment window, but in a field some 386 feet from the apartment buildings, more than the length of a football field. There is no evidence that Lee attempted to call black residents’ attention to the burning cross. When the cross failed to light along one arm, Lee did not attempt to reignite it. Lee’s statement that he burned the cross to take a stand and that maybe the blacks would leave is no different than the Nazi march through Skokie, Illinois, where a message of intolerance to Jews was advocated and yet not actionable. See Collin v. Smith, 578 F.2d 1197 (7th Cir.1978).
Moreover, as in Johnson and in Boos, the prosecution produced no evidence of disruptive conduct. The cross never fully ignited and burned very briefly, less than sixty seconds. No acts of violence occurred after the incident. Shortly after the cross burning, Pearl Jones, the black resident of the apartments who testified that she saw the cross from her balcony, joined defendant and his friends at a picnic table for beer and pizza; she partied with them for a few hours, discussing racial problems at the apartment complex. Merely because Lee has expressed through the cross burning a belief which society regards as reprehensible does not mean that imminent lawless action will follow. As the Court noted in Johnson, 491 U.S. at 409, 109 S.Ct. at 2542, “we have not permitted the government to assume that every expression of a provocative idea will incite a riot_”
In the last line of the opinion, the majority suddenly shifts its analysis from the immir nent lawless action standard and suggests that the jury could find that Lee’s conduct in burning the cross was an unprotected threat. Thus, the majority requires the district court to instruct the jury that it may convict if it finds that “Lee intended to threaten the residents of the Tamarack Apartments, or at least intended to cause the residents of the Tamarack Apartments to reasonably fear the use of imminent force or violence.” Maj.Op. at 1304. As with the lack of evidence to show any imminent lawless action, this standard has not been met as a matter of law.
Threats must be analyzed in the light of their entire factual context. See United States v. Gilbert, 884 F.2d 454, 457 (9th *1307Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990). Here, considering the surrounding events, the cross burning was not a threat. The cross was not focused on one particular individual, but rather was placed 386 feet away from a three-building apartment complex with at least 15 black families. The majority cites the testimony of several witnesses that the cross burning caused them to be afraid. This testimony on the diffused effect of apprehension in no way tends to prove imminent lawless action or intent to threaten. The Supreme Court discredited this type of reasoning almost twenty-five years ago, when it stated that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969).
In the present case, however, we deal with the question of whether there existed a conspiracy (an agreement) to “injure, oppress, threaten, or intimidate” an individual in “any right or privilege secured to him by the Constitution or laws of the United States,” here the right to occupy a dwelling free of force or threats of force.
In prosecuting a criminal conspiracy case, the evidence of what actually occurred does not necessarily defeat proof of the conspiracy. The focus must be on the agreement and on what Lee and his coconspirator intended. In evaluating this particular conspiracy charge under 18 U.S.C. § 241, the question is whether Lee and his fellow conspirators agreed to “injure, oppress, threaten, or intimidate” an individual from exercising his right to housing. Here, in burning the cross Lee and the coeonspirator intended to advocate that “bad blacks should leave.” This was the extent of the agreement, an agreement that involved only the intent to use symbolic speech to send a message. There is no evidence that Lee and his fellow conspirator plotted to burn the cross for the purpose of advocating the use of force or violence. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S.Ct. 3409, 3433, 73 L.Ed.2d 1215 (1982).
Lee and his fellow conspirator intended only to express their viewpoints about blacks symbolically, a view'which may be repugnant but which is nonetheless protected speech. It is difficult for me to comprehend why, when the object of the conspiracy — symbolic speech — is not unlawful (see Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), and Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)), the conspiracy (planning of the symbolic speech) may nevertheless be prosecuted. In a conspiracy charge, the government must prove -that the defendant knowingly agreed to become a party to the conspiracy, that the conspirators intended to do an unlawful act, and that an overt act was committed by one of the conspirators in furtherance of the conspiracy. See generally Barry Tarlow, Defense of a Federal Conspiracy Prosecution, 4 J.Crim.Defense 183, 186-209 (1978). Moreover, the object of the conspiracy must be unlawful. Id. at 201-02.
Even if Lee and his fellow conspirators had agreed to advocate the use of force or violence, a proposition that I find highly speculative, then the critical issue is whether their planned advocacy was “directed to inciting or producing imminent lawless action” and was “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). The majority suggests that Lee may be convicted if Lee intended to cause the residents of the apartments to “reasonably fear” that force was imminent. However, the proper question, if different facts existed than presented here, is whether the conspirators, by burning the cross, intended that immediate violence or force would ensue. Here, considering all of the facts and circumstances leading up to the actual burning of the cross, there is no credible evidence that Lee and his coconspirators willfully intended to produce imminent violence or force or, for that matter, a reasonable fear that lawless action was imminent.
On this basis, I would vacate the judgment of conviction and remand to the district court to enter a judgment of acquittal.
. See also Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949) ("freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”) (citation omitted); R.A.V. v. City of St. *1305Paul, Minnesota, - U.S. -, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); 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). For an interesting discussion of distinctions between protected and unprotected symbolic conduct, see Charles H. Jones, Proscribing Hate: Distinctions Between Criminal Harm and Protected Expression, 18 Wm. Mitchell L.Rev. 935 (1992).
. The jury acquitted Lee on Count II of the indictment which charged him with interfering with housing rights by means of force or threat of force in violation of 42 U.S.C. § 3631(a) (1988).
. There should be little doubt that Lee’s conduct was "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”' Spence v. Washington, 418 U.S. 405, 409-41, 94 S.Ct. 2727, 2729-3052, 41 L.Ed.2d 842 (1974). The prosecution was aimed at Lee’s conspiracy of an expressive threat, therefore applying § 241 to the alleged conspiracy was obviously directed toward suppressing communication and not regulation of non-communicative conduct. Under such circumstances, we agree with Judge John R. Gibson’s opinion that United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1967), is not applicable. Id. at 382, 88 S.Ct. at 1682.
. 42 U.S.C. § 3631(a) provides:
Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—
(a) any person because of his race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings;
shall be fined not more than $1,000, or imprisoned not more than one year, or both; and if bodily injury results shall be fined not more than $10,000, or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.