PER CURIAM.
We reverse the conviction for conspiracy under 18 U.S.C. § 241 (1988), because of errors in the instructions that were given. We remand for retrial under instructions to be given in accordance with the concurring opinion of Judge John R. Gibson, in which Chief Judge Arnold and Judges Bowman, Wollman, and Hansen concur. Judges Lay, Loken, and Morris S. Arnold concur in the result and judgment of the court' for the reasons explained in Judge Lay’s concurring and dissenting opinion.
JOHN R. GIBSON, Circuit Judge, concurring, with whom Chief Judge - RICHARD S. ARNOLD, Judges BOWMAN, WOLLMAN, and HANSEN, concur.
Bruce Roy Lee was convicted of conspiracy against civil rights in violation of 18 U.S.C. § 241 (1988), after he constructed and burned a cross on a hill near an apartment complex in which a number of black families resided. A panel of this court rejected Lee’s argument that the First Amendment was a bar to conviction under section 241, and affirmed his conviction on that count. United States v. Lee, 935 F.2d 952 (8th Cir.1991). We granted rehearing en banc, and now reverse Lee’s conviction for conspiring under 18 U.S.C. § 241.
Since our panel heard this case, the United States Supreme Court has decided two First Amendment cases involving hate-crime statutes. In R.A.V. v. City of St Paul, Minnesota, — U.S. —, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), the Supreme Court re[1298]*1298versed a conviction for burning a cross on a black, family’s lawn in violation of the St. Paul Bias Motivated Crime Ordinance. The Supreme Court held that cross burning was non-verbal expressive activity protected by the First Amendment, and that the St. Paul Ordinance specifically barring the cross burning was facially unconstitutional: Id. at -, 112 S.Ct. at 2547. In Wisconsin v. Mitchell, — U.S. -, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), the Court held that a defendant’s First Amendment • rights were not violated by the application of á sentencing enhancement statute for crimes in which the defendant intentionally selects his victim based on “race, religion, color, disability, sexual orientation, national origin or ancestry of that person....” Id. at — n. 1, 113 S.Ct. at 2197 & n. 1.
We first state the facts essentially as they appear in the panel’s opinion. Lee, 935 F.2d at 954. On August 11, 1989, Bruce Roy Lee was visiting his girlfriend, Debbie Dockter, in Coon Rapids, Minnesota. Dockter lived at the Tamarack Apartments, a three building complex in which approximately fifteen black families lived. The racial mix of the Tamarack Apartments’ residents was approximately three quarters white and one quarter black.
On the morning of August 11, Lee joined Dockter and several other tenants, including Werner Jahr and his wife Cathy Jahr, at a picnic table outside the apartments. The group drank alcohol and discussed racial problems, including several assaults which had occurred among children in the complex. The group also discussed the likelihood that the Joneses, a black family living in an apartment above Dockter, would be evicted. It was rumored that Pearl Jones’ son had assaulted a white child.
The drinking and discussion continued throughout the day. At approximately three o’clock, Werner Jahr mentioned that he had read an article about the Ku Klux Klan. He told Lee that if the Klan was there, there would be a cross burning. Jahr suggested they burn a cross and Lee agreed that it was a good idea. Lee then constructed a wooden cross. Later that afternoon, Lee told Dock-ter’s sister that he intended to burn the cross because there were problems with the people upstairs and he was going to do something about it.
At approximately ten o’clock, Lee changed into dark clothes. There was testimony that Lee also donned a white mask. Lee then burned the cross on a small hill about 386 feet from the apartment buildings. Although the cross had been soaked with mineral spirits, it burned only briefly. Witnesses testified that Lee seemed disappointed that the cross had not burned longer.
Pearl Jones, her family, and her friends saw the burning cross from their balcony. Pearl Jones testified that she was afraid when she saw it because it made her think of the Ku Klux Klan — “peoples that hate blacks.” Upon seeing the cross, she said, “I hope they don’t come up here and burn us up.” She felt the cross burning was directed at her.
Lee later admitted to another tenant that he had taken part in the cross burning and that he knew cross burning was a Klan symbol. He also said he had burned the cross to take a stand and that “[mjaybe that would get rid of some of the bad blacks that were there, they would take the message seriously and leave.”
Lee was charged with violating 18 U.S.C. § 241, which reads:
If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same....
The court instructed the jury on the nature of the charge and described the elements of the offense:
... on August 11 two or more persons, including Bruce Lee, had an agreement or an understanding to threaten or intimidate one or more persons in the exercise of rights secured by the [Constitution or laws of the United States. This element of the offense, the agreement or the conspiracy, requires that the plan of the conspirators be to threaten or intimidate one or more inhabitants of the United States.... [1299]*1299[T]he words threaten or intimidate, áre not used in any technical sense, but they cover 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.
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.
... [Y]ou are advised that for this element of the offense you must find the defendant, if and when he formed or joined the conspiracy, did so with the intent that the victims be deprived of their rights to hold and occupy the apartments at the Tamarack address, free from threats or intimidation on account of race.
... It is only necessary that the alleged conspirators had a purpose to threaten or intimidate others in the exercise of this right to occupy and lease property.
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). The jury convicted Lee on Count III of the indictment which charged him with the use of fire in the commission of a felony in violation of 18 U.S.C. § 844(h)(1) (1988). The panel opinion reversed this conviction, reasoning that it was unclear, whether Congress intended the statute to apply to Lee’s conduct. 935 F.2d at 958. The government requested rehearing en bans with respect to the panel’s reversal of the section 844(h)(1) conviction; we granted rehearing embane only with respect to the section 241 conviction, and the panel opinion is the final disposition of the section 844(h)(1) issue. The jury convicted Lee of violating section 241 (Count I), and the sole issue before us is whether section 241, as applied, violates the First Amendment by punishing the expressive act of cross burning.
A fitting introduction to our discussion is Justice Scalia’s statement in R.A.V.: “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible.” — U.S. at -, 112 S.Ct. at 2550. R.A.V. supplies the predicate for our analysis; namely, that cross burning is symbolic expression protected by the First Amendment. — U.S. at -, 112 S.Ct. at 2547. R.A.V., however, does not aid our analysis beyond a number of general principles, as it deals with an ordinance that specifically proscribes cross burning.
Similarly, the Supreme Court’s recent decision in Wisconsin v. Mitchell does not change our analysis. In that case, the state court applied a state penalty enhancement statute because the defendant intentionally selected his victim based on race. — U.S. at -, 113 S.Ct. at 2197. The Supreme Court first rejected the argument that the enhancement statute violated the First Amendment because it punished offensive thought. Id. at -, 113 S.Ct. at 2198-2200. The Court reasoned that the statute, unlike the statute in R.A.V., was aimed at conduct (physical assault) unprotected by the First ’ Amendment, and that motive has long been a proper sentencing consideration. Id. at -, 113 S.Ct. at 2201. The Court also stated that the state’s isolation of “bias-inspired” conduct for penalty enhancement was' based on the perceived social harms of this conduct and was “over and above mere disagreement with [the] offenders’ beliefs or biases.” Id. The Court also rejected the defendant’s overbreadth argument, holding that the alleged “chilling effect” of the statute was too attenuated and speculative. Id.
“Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated undef the First Amendment.” Regan v. Time, Inc., 468 U.S. 641, 648-49, 104 S.Ct. 3262, 3266-67, 82 L.Ed.2d 487 (1984). When a law is content-based, we must subject the state’s interest “to ‘the most exacting scrutiny.’ ” Texas v. Johnson, 491 U.S. 397, 411, 109 S.Ct. 2533, 2543, 105 L.Ed.2d 342 (1989) (quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988)). “ ‘A law directed at the communicative na[1300]*1300ture of conduct must, like, a law directed at speech itself, be justified by the substantial showing of need.”’ Johnson, 491 U.S. at 406, 109 S.Ct. at 2540 (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622-23 (D.C.Cir.1983) (en banc) (Scalia, J., dissenting), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).
The government argues that Lee’s prosecution was content neutral, and that there were both protected and unprotected elements to Lee’s conduct. The government contends that Lee was not convicted based on the protected expression of his racist views as symbolized by the burning cross, but because the jury found that he acted with the specific intent to threaten and intimidate black residents of the apartment building in the exercise of their federally-guaranteed housing rights. The government states that because Lee’s prosecution was not related to the suppression of expression, we must apply the more deferential standard set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), as reaffirmed in Barnes v. Glen Theatre, Inc., - U.S. -, -, 111 S.Ct. 2456, 2461, 115 L.Ed.2d 504 (1991) (plurality opinion); id. at -, 111 S.Ct. at 2468 (Souter, J., concurring in judgment). Under O’Brien, incidental limitations on First Amendment freedoms are permitted if: the governmental regulation is within the constitutional power of the government; it furthers an important or substantial governmental interest; the governmental interest .is unrelated to the suppression of free expression; and the restriction is no greater than is essential to the furtherance of that interest. Id., 391 U.S. at 376-77, 88 S.Ct. at 1678-79.
Whether application of section 241 violated Lee’s First Amendment rights depends on the likely communicative impact of Lee’s conduct. The Supreme Court has rejected the argument that a law is content neutral when the “ ‘emotive impact of speech on its audience is not a “secondary effect” ’ unrelated to the content of the expression itself.” Johnson, 491 U.S. at 411, 109 S.Ct. at 2543 (quoting Boos, 485 U.S. at 321, 108 S.Ct. at 1164). For example, in Boos, a plurality of the Court held that the need to protect the dignity of foreign diplomatic personnel by shielding them from speech critical to their government could not justify an ordinance prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tended to bring the foreign government into “public odium” or “public disagreement.” 485 U.S. at 315, 321, 108 S.Ct. at 1160, 1164 (plurality opinion); see also id. at 334, 108 S.Ct. at 1171 (Brennan, J., concurring in part and concurring in judgment). The Court held that the law was not content neutral because the law focused on the content of the speech and the direct impact it had on its listeners. Id. at 320-21, 334-35, 108 S.Ct. at 1163-64, 1170-71. The Court later endorsed the Boos plurality in Johnson, 491 U.S. at 411, 109 S.Ct. at 2543, and struck down a conviction arising from a flag burning. Id. at 420, 109 S.Ct. at 2548. The demonstrator was convicted under a statute that prohibited the desecration of a national flag. Id. at 400 n. 1, 109 S.Ct. at 2537 n. 1. The Court concluded that the statute, as applied, was content based because whether the burning of the flag violated the law depended on the “likely communicative impact” of the expressive conduct. Id. at 411, 109 S.Ct. at 2543.
Although section 241 is content neutral on its face, its application to Lee turns on the instructions given to the jury. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 448-49, 89 S.Ct. 1827, 1830-31, 23 L.Ed.2d 430 (1969) (considering jury instructions in as an applied challenge to statute). The court instructed that the defendant’s actions must be taken with the “specific intent to intimidate or interfere” with the residents’ rights to hold and occupy an apartment free from threats or intimidation on account of race. The court also defined “threaten” and “intimidate” to include “a variety of conduct intended to harm, frighten, punish, or inhibit the free action of other persons,” but not requiring “a threat of physical force or the intimidation of physical fear.” Most evidently, threatening and intimidating one or more persons and conduct intended to harm, frighten, punish, or inhibit the free action of other persons relates to the communicative impact and emotive impact of speech on its audience. Thus, under Texas v. Johnson and [1301]*1301Boos v. Barry, we cannot conclude that Lee’s conviction is unrelated to the suppression of expression. The statute as written is- broad, but as targeted toward Lee, it relies on the subjective reactions of residents who witnessed the cross burning and upon, the perception of the viewer as an inherent aspect of the prosecution. The jury instructions outlining the scope of section 241 extend substantially beyond the. plain unvarnished wording of the statute. As Chief Judge Arnold stated in his dissent to the panel opinion in this case, the definition contained in the instructions “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.” 935 F.2d at 959.
Certainly, when “ ‘ “speech” and “non-speech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.’ ” Johnson, 491 U.S. at 406, 109 S.Ct. at 2540 (quoting O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678). In O’Brien, the defendant burned his draft card and was convicted under a statute prohibiting the knowing destruction of a selective service registration certificate. 391 U.S. at 375, 88 S.Ct. at 1678. The Court upheld the conviction reasoning that the continuing availability of the cards served a legitimate and substantial purpose in the administration of the selective service system. Id. at 379, 382, 88 S.Ct. at 1680, 1682. The Court concluded that O’Brien’s deliberate destruction of his card frustrated this purpose and that it was “for this non-communicativ.e aspect of his conduct” for which he was convicted. Id. at 382, 88 S.Ct. at 1682. The Supreme Court has pointed out, however, that the relatively lenient standard announced in O’Brien is limited to those cases in which the government' interest is unrelated to the suppression of free expression, like those in time, place, and manner restrictions. Johnson, 491 U.S. at 406, 109 S.Ct. at 2540; see also R.A.V., — U.S. at -, 112 S.Ct. at 2544.
Like the statute in O’Brien, section 241 is neutral on its face. As applied, however, section 241 focuses on the conduct’s communicative and emotive impact. This impact is not a secondary effect unrelated to the content of the expression itself. Johnson, 491 U.S. at 411, 109 S.Ct. at 2543; Boos, 485 U.S. at 321, 108 S.Ct. at 1164. Although there is an important governmental interest in protecting the exercise of the black residents’ right to occupy a dwelling free from intimidation, we cannot say that, under the circumstances before us, the governmental interest is unrelated to the suppression of free expression. Cf. O’Brien, 391 U.S. at 302, 88 S.Ct. at 1599. No matter how abhorrent, the burning of the cross is expression, and the governmental interest as applied in this case is not unconnected to that expression. • Accordingly, O’Brien has not been satisfied.'
We find further support for our conclusion in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), which, like this situation, involved the application of a general statute to expressive conduct. Cohen was convicted of violating a statute that prohibited disturbing the peace or quiet by offensive conduct when he wore, in the municipal courthouse, a jacket bearing a four-letter “unseemly expletive” in protest of the draft and Vietnam War. Id. at 23, 91 S.Ct. at 1787. Although the Supreme Court referred to O’Brien, it did not apply the O’Brien test. Id. at 18, 91 S.Ct. at 1784. Instead, the Court stated that the conviction quite clearly rested on the asserted offensiveness of the words Cohen used, and the only conduct the State sought to punish was the fact of communication. Id. Thus, the conviction rested entirely on speech, and not on separately identifiable conduct. Id.
The government also argues that Lee’s conviction can be upheld under the second exception articulated in R.A.V., — U.S. at -, 112 S.Ct. at 2546. This exception allows content-based distinctions among subclasses of expression when the prohibited subclass is “associated with particular ‘secondary effects’ of the speech,” such as treason laws or sexually derogatory comments in the workplace. Id. The Court explained that these statutes are directed against conduct, not expression, and that “a particular content-based subcategory of a proscribable [1302]*1302class of speech can be swept up incidentally within the reach of a statute directed at conduct.” Id.
The government argues that the expression here is “swept up incidentally” within a statute directed at conduct prohibiting discrimination in housing. The government continues in its argument that Lee was prosecuted and convicted not for the expressive content of his conduct, but because of the action it entailed, the intimidation and interference of those exercising their federally-guaranteed housing rights.
This argument is unpersuasive. The exception in B.AV. cites as examples speech that would violate treason laws or constitute sexually derogatory “fighting words” in violation of Title VIPs prescription against sexual discrimination in employment practices. Id. Cross burning is not analogous to the examples set forth in R.A.V., and cannot be “swept up incidentally” within a statute prohibiting housing discrimination. Similarly, we cannot conclude that the government has not targeted conduct on the basis of its expressive conduct. See R.A.V., — U.S. at -, 112 S.Ct. at 2546-47. As applied under the jury instructions of this case, section 241 targeted conduct which, though expressive of a discriminatory idea or philosophy, is nevertheless protected expressive conduct.
• We conclude that section 241, as applied in the prosecution against Lee, violated the First Amendment, and Lee’s conviction on Count I must be reversed. We also conclude that the indictment need not be dismissed, but that there must be a new trial With the following principles in mind.
The First Amendment cases of the Supreme Court instruct that there are certain categories of speech which are not protected by the First Amendment. For example, the First Amendment does not protect “fighting words” and expression inciting “imminent lawless action.” See R.AV., — U.S. at -, 112 S.Ct. at 2545; Johnson, 491 U.S. at 409, 109 S.Ct. at 2542. The Supreme Court articulated the imminent lawless action exception in Brandenburg, 395 U.S. at 444-49, 89 S.Ct. 1827-31, where a defendant was convicted for actions at a Ku Klux Klan rally, which included the burning of a cross and threats to “[bjury” black people. Id. at 445-46 n. 1, 89 S.Ct. at 1828-29 n. 1. Part of the rally was televised, but no one attended the rally other than the Klan members and a television reporter. Id. The defendant was convicted under a statute that prohibited advocating violence “as a means of accomplishing industrial or political reform” or voluntarily assembling with a group “to teach or advocate the doctrines of criminal syndicalism.” Id. at 444-45, 89 S.Ct. at 1827-28. The Court reversed the conviction because the indictment and jury instructions defined the offense in terms of mere advocacy not “incitement to imminent lawless action.” Id. at 448-49, 89 S.Ct. at 1830. The Court refined this exception to exclude First Amendment protection when 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 Court reiterated that “ ‘the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’ ” Id. at 448, 89 S.Ct. at 1830 (quoting Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-21 (1961)).
Thus, under Brandenburg, section 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.; see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-29, 102 S.Ct. 3409, 3433-34, 73 L.Ed.2d 1215 (1982) (involving a boycott of merchants accompanied by threatening statements specifically advocating physical violence); Collin v. Smith, 578 F.2d 1197, 1204-05 (7th Cir.) (Nazi party march through heavily Jewish city protected by the First Amendment), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978).
Judge Lay’s dissent argues that there is insufficient evidence to support Lee’s conviction, specifically, that there is no evidence that Lee acted for the purpose of advocating the use of force or violence, or was likely to produce such action. Judge Lay’s dissent goes on to argue that even if Lee and his co-[1303]*1303conspirator agreed to advocate the use of force or violence, there was no evidence that the conspirators intended to threaten or create a reasonable fear of violence among the Tamarack residents.
In viewing the sufficiency of the evidence, we look at the evidence in the light most favorable to the government and accept as established all reasonable inferences supporting the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Yagow, 953 F.2d 423, 426 (8th Cir.1992). Looking at the evidence in this light, a jury could reasonably find that Lee intended to burn the cross for the purpose of advocating the use of force or violence and his actions were likely to produce such action. In addition, the record supports a jury finding that Lee intended to threaten or create a reasonable fear of violence among the Tamarack residents.
Wérner Jahr, the person who came up with the idea of burning the cross, testified that he thought of cross burning as “violence toward blacks.” He also testified that he and Lee decided to burn the cross “to make a statement, ... to leave our kids alone.” Jahr admitted that his intent in burning the cross was to scare and threaten the blacks in the whole complex, and that he wanted them to move out of the complex. Another person at the party, Christine Kositzke, testified that Lee told her he was going to burn a cross to do something about “the. people that (sic) lived upstairs, and that she would see' something she had never seen before.” Mrs. Miller, a witness called by Lee, was asked what a cross burning means in the South or anywhere else, and she stated:
Well it is a form of intimidation; the ku klux klan uses it for threats; promises of violence, and that sort of thing.
From what I understand a lot of the cross burnings in the south during the civil rights movement preceded hangings and that sort of thing. Of course, being a black, that is what is (sic) calls to mind.
From this testimony, a jury could reasonably conclude that Lee’s intent in burning the' cross was more than simply advocating the use of violence. From this testimony, a jury could find that Lee burnt the cross to incite the use of violence and such a result was likely to occur. See Brandenburg, 395 U.S. at 447, 89 S.Ct. at 1829. A jury could also find that Lee’s actions involved the threatened use of force against the residents of the apartments, or at least intended to cause the residents to reasonably fear that force was imminent. Cf. Claiborne, 458 U.S. at 929, 102 S.Ct. at 3434 (no evidence that defendant “authorized, ratified, or directly threatened acts-of violence”).
The fact that the jury acquitted Lee on Count II of the indictment is of little consequence when we consider the evidence as to Count I in the light most favorable to the government. Count II, among other things, was a substantive count requiring the jury to find that Lee actually used force or the threat of force against the black residents of the Tamarack apartments in violation of their rights to rent and occupy their apartments. See 42 U.S.C. § 3631(a). Count I, the conspiracy count, only required an agreement to threaten or intimidate, persons in the exercise of their rights secured by the Constitution or the laws of the United States. See 18 U.S.C. § 241.
A jury could also view Lee’s attempt to conceal his role in the cross burning as evidence that Lee’s intent in burning the cross was not the protected activity of advocating an idea but was the unprotected activity of threatening or intimidating the residents of the apartments. Lee told the drinking group who witnessed the cross burning not to tell anyone about the cross burning, and advised them to blame some teenagers for the act.
Judge Lay’s statement that there was no evidence that Lee intended to create a reasonable fear of violence among the Tamarack residents cannot be reconciled with the testimony of the black residents who witnessed the cross burning. Pearl Jones testified that she saw the burning cross, that she was afraid, and that the children in her apartment with her who saw the burning cross were afraid and crying. She testified that she believed the cross burning was directed at her, and that she was afraid the group might “come up here and burn us up.”
[1304]*1304Judge Lay makes much of the fact that Pearl Jones joined the Lee party after the cross burning, and that this negates a finding that Lee’s actions were likely to result in imminent lawless action as a matter of, law. The fact that Pearl Jones joined the drinking group after the cross burning, however, has nothing to do with whether Lee intended to threaten or intimidate the black residents. Pearl Jones testified that after the police came, she went outside with two other people to talk to the group to find out why they burned the cross. Another witness testified that after Pearl Jones returned to her apartment, she was frightened and stated that she was afraid that when she woke up the “apartment would be burned down and everybody would be lulled.”
In any event, besides Pearl Jones, there were other witnesses, who testified about their reaction to the cross burning. Angie Jones, Pearl Jones’ twelve-year old daughter, testified that she understood that a burning cross meant that “white people were trying to get rid of the blacks,” and that when she saw the burning cross she felt “scared and sad,” and was “afraid somebody would come up in the hall and take us away.” Another resident of the Tamarack Apartments testified that she was with Pearl Jones the night of August 11, 1990, saw the burning cross and that “[t]he kids were really scared ... really upset.” She said the kids were asking questions wanting to know what was going on and whether “they [are] going to hurt us.” In light of the history of violence associated with the Ku Klux Klan, a jury could reasonably conclude • that Lee’s intent in burning the cross was to threaten violence. Accordingly, sufficient evidence exists from which a jury could reasonably conclude that by burning the cross Lee intended to threaten acts of violence against the black residents of the apartment or at least intended to cause the residents to reasonably fear the use of imminent force or violence.
Accordingly, we reverse Lee’s conviction on Count I of the indictment, and remand for a new trial. At the new trial, the jury should be instructed that it cannot convict on Count I unless 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; of 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. In addition to the judges joining in this opinion, Judges Lay, Loken and Morris S. Arnold concur in the result we reach and in the court’s judgment.