with whom FAGG, MAGILL and BEAM, Circuit Judges, join, dissenting.
Everyone, irrespective of the colour of their skin, is-entitled to walk through our streets in peace, with their heads erect, and free from fear.... As far as the law is concerned you are entitled to think what you like, however foul your thoughts; to feel what you like, however brutal and debased your emotions; to say what you like providing you do not infringe the rights of others ..., but once you translate your dark thoughts and brutal feelings into savage acts ... the law will be swift to punish you, ... and to protect your victims.
Four-Year Terms for Nine “Nigger-Hunting” Youths, (Quoting Justice Cyril Barnet Salmon at the time he sentenced nine youths who had' pleaded guilty to various crimes committed in and around London’s Notting Hill area.) The London Times, Sep. 16,1958, at 4.
I cannot accept the majority’s view that “an apparently limitless variety of conduct can be labeled [protected] ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1967) (O’Brien). In fact, “acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. City of St. Paul, — U.S. -, — , 112 S.Ct. 2538, 2546-47, 120 L.Ed.2d 305 (1992) (R.A.V.). In the present case Lee was not prosecuted and convicted for expressing an idea or a philosophical point of view. He was prosecuted and convicted because he conspired to threaten and intimidate the African-American residents of the Tamarack Apartments in the exercise of their federally-guaranteed housing rights. Such conduct is not protected by the First Amendment.because “[violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection.” Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462 (1984) (Roberts). Accordingly, I dissent and would affirm the conviction.
Government limitations on expressive conduct do not violate an individual’s freedom of expression if: the government has the constitutional power to regulate it; the regulation furthers an important or substantial government interest; the governmental interest is unrelatéd to the- suppression of free expression; and the incidental restriction on first amendment freedoms is no greater than is essential to the furtherance of that interest. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.
The O’Brien analysis was reaffirmed by the Supreme Court in Barnes v. Glen Theatre, Inc., — U.S. -, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (.Barnes). In Barnes the Court held that the government’s interest in protecting societal order and morality was “unrelated to the suppression of free expression.” Id. at -, 111 S.Ct. at 2462 (plurality opinion); id. at -, 111 S.Ct. at 2463 (Scalia, J., concurring); id. at -, 111 S.Ct. at 2468 (Souter, J., concurring). While agreeing that the dancing to which the Indiana statute at issue was applied had a “communicative element,” the Court concluded that “it was not the dancing that was prohibited, but simply its being done in the nude.” Id. at -, 111 S.Ct. at 2463 (plurality opinion).
Applying the O’Brien standard to the present case, it is clear that 18 U.S.C. § 241 as applied to- Lee did not violate his First Amendment. freedoms because he was not convicted for burning a cross in an effort to express an idea. Title 18 U.S.C. § 241 prohibits conspiracies to interfere with federally protected rights. Congress has the power under the Fourteenth Amendment and under the Commerce Clause to prohibit interference with the constitutional and legal rights of others. See S.Rep. No. 721, 90th Cong., 2d Sess. 2, reprinted in 1968 U.S.C.C.A.N. 1837, 1841-43 (discussing constitutional authority for enacting 42 U.S.C. § 3631 and amending 18 U.S.C. § 241). Furthermore, the government has an interest in protecting the citizens of the United States in the free exercise of their constitutional and legal rights, including the right to live where they choose without fear of oppression, threats, *1309intimidation, injury, or interference. Title 18 U.S.C. § 241 specifically furthers this legitimate government interest by criminalizing conduct which interferes with the free exercise of such rights.
The government’s interest in prohibiting conspiracy to interfere with such rights is unrelated to the suppression of free expression. Section 241 as applied only prohibits conspiracy to willfully intimidate or interfere with the exercise and enjoyment of legal rights by identifiable victims because of their race or color, not the expression or advocacy of ideas. The extent to which this restriction incidentally affects Lee’s right to freely express himself by burning a cross is no greater than is essential to further the substantial and important government interést protected by the statute. In other words, Lee’s ability to burn a cross is restricted only if done with the specific intent to conspire to intimidate or threaten the free exercise and enjoyment of the legal rights of others.
Contrary to the majority’s argument, the Supreme Court in R.AV. did not hold that “cross burning” is symbolic expression protected by the First Amendment; rather, the Court held that cross burning could have been punished under a number of statutes. — U.S. — at & n. 1, 112 S.Ct. at 2541 & n. 1. In R.A.V. the Court determined that the form of expression reached by the Minnesota statute at issue was proscribable under the “fighting words” doctrine. However, the court concluded that the ordinance was facially unconstitutional because it prohibited “otherwise permitted speech solely on the basis of the subjects the speech addresses.” Id. at -, 112 S.Ct. at 2542.
While concluding that. certain fighting words could consistent with the First Amendment “be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.),” id. at -, 112 S.Ct. at 2548, the Court held that those categories could not be “made the vehicles for content discrimination unrelated to their distinctively proscribable content.” Id. Hence, the Court concluded that certain categories of expression may be proscribed on one basis but not on others. Id. at -, 112 S.Ct. at 2544.
In analyzing content-based regulations, the Court in R.AV. articulated some restrictions that would survive First Amendment scrutiny. In the first instance the Court indicated that “when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists.”5 Id. at -, 112 S.Ct. at 2545.
The Supreme Court also determined that the government may make content-based distinctions among subclasses of . expression where “the [particular] subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is ‘justified without reference to the content of the ... speech.’ ” Id. at -, 112 S.Ct. at 2546 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986)). By way of explanation, the Court indicated that “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the . nation’s defense secrets), a particular content-based subcategory of proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.” R.A.V., — U.S. at —, 112 S.Ct. at 2546 (citations omitted).
The Supreme Court cited Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and Equal Employment Opportunity Commission Guidelines prohibiting sexual harass*1310ment in the workplace, 29 C.F.R. § 1604.11; 18 U.S.C. § 242; and 42 U.S.C. §§ 1981, 1982, as example of statutes that are directed against conduct rather than expression. The Court concluded that “sexually derogatory ‘fighting words’ ” in the workplace can be prohibited as a violation of Title VIPs proscription of gender discrimination in employment. R.A.V., — U.S. at -, 112 S.Ct. at 2546. Sexual harassment violates Title YII when it “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3) (1988). Additionally, it is a violation of federal law to discriminate in employment because of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (1988); see also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (“Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.”). Therefore, the government may prohibit interference with an individual’s employment status, even in circumstances where the interference consists solely of speech. It is the conduct that the government prohibits, not the expressive content of the speech.
Lastly, the Court in R.A.V. determined that a content-based regulation would not be prohibited if “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” — U.S. at -, 112 S.Ct. at 2547. After careful analysis, the Supreme Court concluded that the St. Paul Ordinance did not fall within any of the above exceptions. Id. at -, 112 S.Ct. at 2549.
Contrary to the majority’s conclusion, the decision in R.A.V. reinforces the conclusion that Lee was convicted for intentionally conspiring to threaten and intimidate others in violation of 18 U.S.C. § 241, conduct that is outside the protection of the First Amendment. Unlike “[t]he ordinance struck down in R.A.V. [which] was explicitly directed at expression (i.e., ‘speech’ or ‘messages,’ ...), the statute in this case is aimed at conduct unprotected by the First Amendment.” Wisconsin v. Mitchell, — U.S. -, -, 113 S.Ct. 2194, 2201, 124 L.Ed.2d 436 (1993) (Mitchell); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982) (“The First Amendment does not protect violence.”).
I also disagree with the majority’s conclusion that the Supreme Court’s decision in Mitchell does not affect the analysis of this case. As the majority has acknowledged, supra at 1298, in Mitchell the Court upheld a statute providing for an enhanced penalty where a defendant selects his victim on account of the victim’s race, religion, color, disability, sexual orientation, national origin, or ancestry, concluding that the prohibited conduct was unprotected by the First Amendment. Id. — U.S. at -, 113 S.Ct. at 2201-02. In Mitchell the Court also held that a defendant’s expression of bigotry may constitutionally be used “to establish the elements of a crime or to prove motive or intent.” Id. Thus, the Supreme Court once again restated the axiom that the First Amendment is not violated by a statute on the ground that it proscribes conduct motivated by discrimination. Id. at -, 113 S.Ct. at 2200, citing Roberts, 468 U.S. at 628, 104 S.Ct. at 3255; Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2235, 81 L.Ed.2d 59 (1984); Runyon v. McGrary, 427 U.S. 160, 176, 96 S.Ct. 2586, 2597, 49 L.Ed.2d 415 (1976); 42 U.S.C. § 2000e-2(a)(1); 18 U.S.C. § 242; 42 U.S.C. §§ 1981 and 1982.
Similar to the statute in Mitchell, 18 U.S.C. § 241 is a statute directed at conduct that is not within the ambit of the First Amendment. It does not regulate expression but prohibits categories of proscribable expressive conduct intended to interfere with the rights of others in the exercise of their federally guaranteed rights. R.A.V., — U.S. at -, 112 S.Ct. at 2548-49. Section 241 has consistently been upheld as a valid exercise of governmental authority to enforce the rights guaranteed by the laws of the land. See, e.g., United States v. Johnson, 390 U.S. 563, 565, 88 S.Ct. 1231, 1233, 20 L.Ed.2d 132 (1968) (“18 U.S.C. § 241 .... as noted, protects the citizen ‘in the free exercise or enjoyment of any right or privilege *1311secured to him by the Constitution or laws of the United States.’”); United States v. Guest, 383 U.S. 745, 759, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966) (“It is also well settled in our decisions that the federal commerce power authorizes Congress to legislate for the protection of individuals' from violations of civil rights that impinge on their free movement in interstate commerce.”) (citations omitted); United States v. Price, 383 U.S. 787, 798, 86 S.Ct. 1152, 1159, 16 L.Ed.2d 267 (1966) (“§ 241 must be read as it is written — to reach conspiracies ‘to injure ... any citizen in the free exercise or enjoyment of any right or privilege ... ’; that this language includes rights or privileges protected by the Fourteenth Amendment”). Hence, the application of § 241 to Lee does not violate his Constitutional right of free expression.
Today the majority reverses Lee’s conviction on Count I with instructions that he should be retried and the jury instructed that it should convict him only if it finds that “Lee’s actions were done with the intent to advocate the use of force or violence and were likely to produce such action; or that Lee intended to threaten, the residents of the Tamarack Apartments, or at least intended to cause residents of the Tamarack Apartments to reasonably fear the use of imminent force or violence.” Supra, at 1304. Although the jury instructions as a whole may have been somewhat inconsistent, the jury was given an instruction similar to that advocated by the majority: “In order to constitute a criminal conspiracy under Count I, the defendant’s actions must have been taken with the specific intent to intimidate or interfere with the residents^] right to occupy a dwelling free of force or threats of force.” Tr. at 519.
As the majority concedes, “the record supports a jury finding that Lee intended to threaten or create a reasonable fear of violence among the Tamarack residents.” Supra, at 1303. Pearl Jones, her family and friends saw the cross burning from her balcony. Both Pearl Jones and her daughter testified that they were afraid that whoever had burned the cross was going to come up and burn them out of their apartment. Additionally, their fear of physical harm was corroborated by another witness. Therefore, there was substantial evidence to convict Lee of violating § 241, and any error in instructing the jury that “[t]o threaten or intimidate does not require a threat of physical force or the intimidation of physical fear,” Tr. at 517, was harmless.
Moreover, I find no support for the majority’s proposition that the only way that the First Amendment is not violated by the application of § 241 is if limited to threats of the imminent use of physical force. In fact, such a requirement would invalidate a number of criminal statutes expressly prohibiting threats of harm through nonviolent means. See, e.g., 18 U.S.C. §§ 601(a) (prohibiting the solicitation of campaign contributions through threats of the loss of government employment or benefits), 873 (prohibiting “a threat of informing ... against any violation of any law of the United States”), 874 (“threat of procuring dismissal from employment”), 875(d) (“threat to injure the property or reputation.... or any threat to accuse the addressee ... of a crime”), 876 (same), 877 (same); 891(7) (defining “extortionate means” to include “an express or implicit threat ... of violence or other criminal means to cause harm to the person, reputation or property of any person”).
Furthermore, I am not persuaded by the majority’s reliance on Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (Brandenburg), that § 241 may be applied to Lee’s prosecution as long as it is limited to punishing expression “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. In Brandenburg, the Supreme Court held that a criminal statute as applied to a Kú Klux Klan rally violated the First Amendment. Unlike the present case, the Ohio statute failed to distinguish between “the mere abstract teaching of ... the necessity for violence” and “preparing a group for violent action.” Id. at 448, 89 S.Ct. at 1830. Thus, in Brandenburg, the Klansmen were convicted of violating a statute which purported to punish them merely for advocating certain proscribed conduct. In contrast, Lee was'prosecuted and convicted not for mere *1312advocacy of proscribed conduct, but for proscribed conduct, conspiracy to burn a cross for the purpose of directly intimidating and threatening the African-American residents of the Tamarack apartments.
Although in some circumstances burning a cross may be considered mere advocacy, where cross burning is done with the specific intent to intimidate and threaten identifiable victims as here, I firmly believe that the cross burning is not conduct protected by the First Amendment. I respectfully dissent and would affirm Lee’s conviction:
. As an example of this type of restriction the Court pointed to 18 U.S.C. § 871, the federal statute that prohibits threats against the life of the President. The Court concluded that this statute was valid "since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.” R.A.V., - U.S. at -, 112 S.Ct. at 2546, citing Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969). However, the government cannot only prohibit threats against the President that are made as a result of a specific policy. Id. - U.S. at —, 112 S.Ct. at 2546.