United States v. Bruce Roy Lee

No. 90-5264. ARNOLD, Before RICHARD S. Chief LAY, Judge, Judge, Senior Circuit Appeals, Court of United States McMILLIAN, GIBSON, FAGG, R. JOHN Eighth Circuit. BOWMAN, WOLLMAN, MAGILL, BEAM, 15, 1992. Submitted Oct. LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, Decided Oct. Judges. Circuit

PER CURIAM. We reverse conviction for conspiracy (1988), under 18 because of given. errors in the instructions were We remand for retrial under instructions to given in concurring accordance with the Gibson, opinion Judge John R. in which Judge Bowman, Judges Chief Arnold and Wollman, Judges Lay, and Hansen concur. Loken, and Morris Arnold S. concur judgment result and of the court' for the explained Judge Lay’s concurring reasons dissenting opinion. GIBSON, Judge, R. JOHN Circuit - concurring, Judge with whom Chief ARNOLD, BOWMAN, Judges RICHARD S. HANSEN, WOLLMAN, and concur. conspira- Roy Bruce Lee was convicted of cy against civil violation of 18 U.S.C. (1988), after he constructed apartment hill burned a on a near an complex in a number of black families which rejected panel A resided. of this court argument was a that the First Amendment to conviction under section and af- bar firmed his conviction that count. United (8th Cir.1991). Lee, v. States 935 F.2d banc, granted rehearing now re- We en conspiring conviction for under verse Lee’s § 241. 18 U.S.C. panel the United

Since our heard this two First Supreme Court has decided States involving hate-crime stat- Amendment cases Paul, City St Minneso utes. R.A.V. — U.S. —, ta, 2538, 120 (1992), re- something going he was to do upstairs burning a cross on a conviction versed black, of the St. Paul about it. family’s in violation lawn The Su- Ordinance. Crime Bias Motivated o’clock, changed Lee approximately At ten burning was cross held that preme Court testimony There was that into clothes. dark by activity protected expressive non-verbal a white mask. Lee then Lee also donned Amendment, Paul and that St. First a small hill about 386 the cross on burned barring the cross specifically Ordinance Although buildings. apartment from the feet facially Id. unconstitutional: burning was spir- with mineral the cross had been soaked Wisconsin briefly. testi- its, it Witnesses burned U.S. -, Mitchell, disappointed that the that Lee seemed fied (1993), that a the Court held L.Ed.2d longer. cross had not burned (cid:127) rights were Amendment defendant’s Jones, family, friends her and her Pearl application of á sentenc- by the not violated balcony. burning cross from saw in for crimes which statute enhancement that she was afraid Pearl Jones testified intentionally his victim selects the defendant it made her think when she saw because color, “race, disability, sex- religion, on based “peoples Ku Klux that hate Klan — orientation, ancestry origin national or ual said, cross, “I Upon seeing the she blacks.” — 1, n. person....” they up come here and burn us hope don’t n. 1. at 2197 & burning was directed up.” She felt the cross they essentially as the facts first state We at her. Lee, opinion. F.2d appear panel’s in tenant that Lee later admitted to another Roy August Bruce Lee at 954. On part taken he had Dockter, in visiting girlfriend, Debbie sym- burning was a Klan that he knew cross Dockter lived at Rapids, Minnesota. Coon he had burned the cross to bol. He also said building Apartments, a three the Tamarack “[mjaybe that would take a stand and approximately fifteen black complex in which the bad blacks that were get rid of some of racial mix of the Tamar- lived. The families seriously there, message they would take the approximately Apartments’ residents was ack and leave.” quarter and one black. quarters white three charged violating 18 U.S.C. Lee was joined morning August Lee On the which reads: tenants, including and several other Dockter persons conspire to in- If two or more Jahr, Cathy at a and his wife Jahr Werner threaten, any jure, or intimidate oppress, apartments. The picnic outside the table State, any Territory, Dis- inhabitant of or and discussed racial group drank alcohol enjoyment trict the free exercise or including assaults which problems, several any right privilege to him secured complex. among in the children had occurred or laws of the United Constitution group also discussed the likelihood The States, having of his so exer- because Joneses, apart- family living in an a black cised the same.... Dockter, be evicted. It ment above would son as- was rumored that Pearl Jones’ had court instructed the on the na- saulted a white child. charge of the and described the ele- ture ments of the offense: drinking continued and discussion August persons, or more day. approximately three two throughout the At Lee, agreement or o’clock, including Bruce had an mentioned that he had Werner Jahr understanding to threaten or intimidate Ku Klux Klan. He read an article about the there, persons in the exercise of one or more if the Klan was there told Lee that burning. suggested [Constitution secured would be a cross Jahr This element of they agreed that it was laws of United States. burn a cross and Lee offense, agreement conspira- or the good then constructed a wooden idea. Lee afternoon, plan conspira- cy, requires that the Lee told Dock- cross. Later that threaten or intimidate one or tors be to that he intended to burn the ter’s sister people more inhabitants United States.... problems because there were with the intimidate, fitting áre not A introduction to our discussion is threaten or words [T]he sense, Justice Scalia’s statement R.A.V.: “Let they any cover technical used there be no mistake about our belief that harm, intended to variety of conduct yard a cross someone’s front the free action frighten, punish, or inhibit at -, reprehensible.” persons. of other supplies predicate at 2550. R.A.V. the for not re- or intimidate does To threaten analysis; namely, that cross our or the physical force quire a threat symbolic expression protected by the First fear. physical intimidation at -, 112 at Amendment. U.S. R.A.V., however, our does not aid analysis beyond general princi- a number of conspir- a criminal In order to constitute ples, specif- with an as deals ordinance that I, actions acy the defendant’s under Count ically proscribes burning. specific with the have been taken must Similarly, Supreme the Court’s recent de- interfere the intent to intimidate or with cision Wisconsin v. Mitchell does not dwelling a free of right occupy residents analysis. change our In that the state force or threats of force. applied penalty court a state enhancement that for this ele- ... are advised [Y]ou intentionally statute because the defendant you must find the ment of the offense selected his victim based on race. U.S. defendant, joined if he and when formed 113 S.Ct. at 2197. The conspiracy, with the intent that the did so rejected argument first the that the Court deprived rights to be of their victims enhancement statute violated the First occupy apartments at the and punished hold Amendment because it offensive address, at -, from threats or thought. Tamarack free Id. of race. 2198-2200. The Court reasoned that

intimidation on account statute, R.A.V., unlike the statute in only necessary alleged that the It is assault) (physical unpro- aimed at conduct conspirators purpose to threaten or had ’ Amendment, by tected others in the exercise of this intimidate long proper sentencing has been a motive property. right occupy and lease at -, Id. consideration. II jury acquitted Lee on Count of the The Court also stated that the state’s iso- The “bias-inspired” penalty for charged him interfer- lation of conduct indictment which with perceived enhancement was' based on ing housing rights by means of force or with and was “over social harms of this conduct of force in violation of threat disagreement above mere with of- 3631(a) (1988). [the] jury Lee on The convicted The fenders’ beliefs or biases.” Id. Court charged III of the indictment which Count rejected ar- the defendant’s overbreadth also him the use of fire in the commission of with “chilling gument, holding alleged 844(h)(1) felony in violation of 18 U.S.C. attenuated and effect” of the statute was too (1988). panel opinion reversed this con- The unclear, speculative. viction, reasoning that it was whether Congress apply to intended the statute to “Regulations permit which the Govern- gov- The Lee’s conduct. 935 F.2d to discriminate on the basis ment requested rehearing en with ernment message cannot be tolerated bans content of the respect panel’s reversal of the section to the Regan v. undef the First Amendment.” 844(h)(1) conviction; granted rehearing Time, Inc., 641, 648-49, we 104 S.Ct. respect 3262, 3266-67, embane section When 82 L.Ed.2d 487 conviction, content-based, panel opinion subject is the final and the must a law is we 844(h)(1) disposition exacting issue. of the section “to ‘the most scruti- state’s interest ” 411, Johnson, 397, violating ny.’ convicted Lee of section Texas v. (Count I), issue before us is and the sole 109 S.Ct. Barry, applied, (quoting violates Boos v. section whether (1988)). by punishing expres- 108 S.Ct. First Amendment “ na- at the communicative burning. ‘A law directed sive act of cross like, protect digni- must, held that the need to directed at Court a law of conduct ture diplomatic personnel shield- ty foreign substantial itself, justified speech govern- ing from critical to Johnson, them 491 U.S. at need.”’ showing of justify prohibit- could not ordinance ment Community (quoting at 2540 any sign within 500 feet of display Watt, 703 F.2d Non-Violence Creative for sign bring if foreign embassy tended banc) (en (Scalia, (D.C.Cir.1983) 622-23 “public into odium” foreign government Clark v. Com sub nom. J., dissenting), rev’d disagreement.” 485 U.S. at “public Non-Violence, 468 U.S. munity Creative (plurality opin- (1984)). 82 L.Ed.2d ion); at 1171 see also id. at argues prose- that Lee’s (Brennan, J., concurring part and concur- neutral, there content cution was ring judgment). The held that the unprotected ele- protected were both the law was not content neutral because law conduct. The Lee’s to ments speech and the on the content of the focused convicted based Lee was not contends impact it had on its listeners. Id. at direct expression of his racist on the 1163-64, 320-21, 334-35, at 1170- 108 S.Ct. cross, the symbolized views as plu- Boos 71. The later endorsed the Court jury that he acted with found the but because Johnson, rality in 491 U.S. at 109 S.Ct. intimidate to threaten and intent specific the arising down a conviction at and struck apartment building in the black residents flag burning. Id. at 109 S.Ct. at from a federally-guaranteed of their the exercise un- was convicted 2548. The demonstrator government states that rights. The housing prohibited the desecration der a statute that was not related to prosecution because flag. a Id. at 400 n. 109 S.Ct. of national apply expression, we must suppression The concluded that the at 2537 n. 1. Court forth in standard set deferential the more statute, applied, content based be- as O’Brien, 391 U.S. 88 States United flag burning of the violat- cause whether the (1968), 672 as reaf L.Ed.2d 20 S.Ct. “likely depended on the communi- ed the law - Theatre, Inc., v. Glen in Barnes firmed impact” expressive conduct. Id. cative of the -, -, 111 115 S.Ct. U.S. at at 109 S.Ct. (1991) (plurality opinion); id. at 504 L.Ed.2d Although 241 content neutral on section is (Souter, J., 2468 concur at face, application turns on the its its to Lee O’Brien, Under inciden- ring judgment). See, jury. e.g., given instructions freedoms on Amendment tal limitations 444, 448-49, Ohio, Brandenburg v. 395 U.S. regula- governmental if: the permitted are 1827, 1830-31, 23 L.Ed.2d power constitutional of the tion is within jury ap- an (considering instructions as important government; furthers an or sub- it statute). challenge The court in- plied to interest; govern- governmental stantial structed that the defendant’s actions must be suppres- unrelated mental interest .is “specific intent to intimidate taken with the expression; and the restriction sion of free is with the residents’ or interfere” to the further- greater no than is essential apartment occupy hold and an free from Id., 376-77, at interest. ance of that threats or intimidation on account race. at 1678-79. S.Ct. The “threaten” and “intim- court also defined application of section violated variety Whether to include “a of conduct intend- idate” rights depends Amendment harm, Lee’s First frighten, punish, or inhibit the ed to likely impact of Lee’s con communicative persons,” requir- free action of other but rejected has duct. physical the intimi- ing “a threat of force or argument evidently, a law is content neutral when physical fear.” Most dation of “ impact speech on its audi threatening intimidating ‘emotive one or more ’ harm, “secondary unrelated a effect” persons ence is not and conduct intended expression punish, itself.” John inhibit the free action of frighten, content son, (quot persons at at 2543 relates to the communicative other 1164). Boos, impact impact on its at and emotive 485 U.S. at Thus, Boos, v. Johnson and plurality For audience. under Texas example, in on the commu- conclude that Lee’s section focuses conduct’s Barry, we cannot Boos v. impact. impact This suppression of nicative and emotive unrelated to conviction is broad, secondary as written is- not a effect unrelated the con- expression. The statute Johnson, Lee, expression tent of itself. targeted toward it relies on the Boos, 411, 109 2543; at subjective of residents who wit- U.S. U.S. reactions upon, per- Although there is burning and nessed aspect important governmental in pro- an inherent interest ception of the viewer as tecting the exercise of the instructions out- black residents’ prosecution. right occupy dwelling scope of 241 extend sub- free from intimi- lining the section dation, that, say stantially beyond plain unvarnished we cannot under the circum- the. us, Judge governmental wording As Chief Ar- stances before interest of the statute. panel opinion suppression is unrelated to the of free ex- dissent to the nold stated O’Brien, pression. contained in the the definition Cf. broad, abhorrent, at 1599. No matter how “is much too because instructions conduct, burning expression, great deal of of the cross is and the criminalize would speech, governmental applied no interest as pure of it which does more this case some (cid:127) forcefully expression. find is not unconnected to that Ac- than state a view others cordingly, revolting appalling.” 935 F.2d at 959. O’Brien has not been satisfied.' “ ‘“speech” support find further for Certainly, when and “non- We our conclusion 15, California, combined in the same in Cohen v. speech” elements are U.S. (1971),which, conduct, sufficiently important a like this course of situation, regulating application gener- in of a governmental interest non- involved justify expressive limita- al conduct. speech element can incidental Cohen statute ” violating prohibit- freedoms.’ convicted of a statute that tions on First Amendment Johnson, disturbing peace quiet at ed offensive 491 U.S. at 109 S.Ct. wore, O’Brien, municipal he in the (quoting at 88 S.Ct. at conduct when U.S. 1678). O’Brien, courthouse, jacket bearing a burned his a four-letter defendant “unseemly expletive” protest in of the draft and was convicted under a statute draft card knowing War. Id. at 91 S.Ct. at prohibiting the destruction a se- and Vietnam Although Supreme referred registration certificate. 391 1787. Court lective service O’Brien, apply it test. at 1678. The Court did not O’Brien U.S. at Instead, reasoning at upheld the conviction that the con- Id. quite clearly that the conviction tinuing availability of the cards served a le- Court stated purpose in on the asserted offensiveness of gitimate and substantial the ad- rested used, system. Cohen and the conduct ministration of the selective service words fact of com- sought punish The was the Id. at 88 S.Ct. at 1682. State Thus, the rested that deliberate de- munication. Id. conviction Court concluded O’Brien’s separately purpose entirely speech, and on struction of his card frustrated this not conduct. Id. and that it was “for this non-communicativ.e identifiable aspect for he was of his conduct” which government argues that Lee’s The also The convicted. Id. at 88 S.Ct. at 1682. upheld under the second conviction can be out, however, pointed Court has R.A.V., in at exception articulated U.S. relatively an- that lenient standard exception al- at 2546. This nounced in O’Brien is limited to those cases among lows content-based distinctions sub- in government' which the interest is unrelat- prohibited expression when the classes of expression, suppression ed to the of free like particular with ‘sec- subclass is “associated time, place, those in and manner restrictions. speech,” trea- ondary effects’ of the such as Johnson, 2540; at at U.S. sexually derogatory comments in laws or son R.A.V., at -, see also 112 S.Ct. at explained workplace. Id. The Court against con- that these statutes are directed O’Brien, duct, particular “a expression, not and that

Like the section 241 is statute however, proscribable subcategory of a applied, neutral on its face. As content-based “[bjury” people. Id. at 445- swept up incidentally threats to black can be class n. 1. Part of the at 46 n. 89 S.Ct. at 1828-29 of a statute directed reach within televised, no attended the rally was one Id. conduct.” a rally other than the Klan members and argues expres- that government The reporter. Id. The defendant was television incidentally” within a “swept up sion here is prohibited a ad convicted under statute prohibiting conduct dis- directed statute accomplish vocating violence “as a means of housing. government The crimination political reform” or volun ing industrial or pros- that Lee argument in its continues tarily assembling group “to teach or expressive not for the and convicted ecuted syndical the doctrines of criminal advocate conduct, but because content of 444-45, ism.” Id. at 1827-28. entailed, inter- the intimidation and action The reversed the conviction because Court federally- exercising their those ference of instructions defined the indictment housing rights. guaranteed advocacy not the offense terms mere unpersuasive. ex- is argument This “incitement to imminent lawless action.” Id. examples speech cites as in B.AV. ception 448-49, re 89 S.Ct. at 1830. or constitute violate treason laws that would exception to exclude First Amend fined this “fighting in viola- sexually derogatory words” “advocacy protection when such is di ment against prescription sexual Title VIPs tion of inciting producing imminent law rected employment practices. discrimination action, likely produce less and is to incite or analogous not to the exam- Cross such action.” Id. at R.A.V., and cannot be ples forth set “ ‘the mere ab The Court reiterated pro- incidentally” within a statute up “swept teaching propriety ... of the moral stract Similarly, housing hibiting discrimination. necessity force even moral resort to has we cannot conclude violence, preparing is not the same as its ex conduct on the basis of targeted steeling it to group for violent action and R.A.V., at See U.S. pressive conduct. ” such action.’ Id. at 89 S.Ct. at 1830 -, applied As under at 2546-47. 112 S.Ct. States, (quoting v. 367 U.S. Noto United of this section 241 jury the instructions (1961)). 297-98, 81 S.Ct. 1520-21 which, though expressive of targeted conduct discriminatory philosophy, idea or is never- Thus, may Brandenburg, under section 241 expressive conduct. protected theless applied prosecution long to as as it Lee’s (cid:127) punishing expression is limited to “directed applied that section as conclude We inciting producing to imminent lawless Lee, against violated the prosecution the likely produce such action and is to incite Amendment, and Lee’s conviction on Id.; also v. Claiborne action.” see NAACP conclude Count I must be reversed. We also Co., 886, 927-29, 102 Hardware 458 U.S. dismissed, need not be indictment 3409, 3433-34, 73 L.Ed.2d 1215 S.Ct. there must be a new trial With the but that boycott accompa- (involving a of merchants following principles mind. by threatening specifically nied statements Amendment cases of the Su The First violence); advocating physical v. Collin preme that there are certain Court instruct (7th Cir.) Smith, 578 F.2d 1204-05 categories which are not (Nazi party through heavily march Jewish example, First Amendment. For Amendment), city protected by the First protect “fighting does not First Amendment denied, cert. 439 U.S. expression inciting words” and “imminent L.Ed.2d R.AV., at lawless action.” See U.S. 2545; Johnson, Judge Lay’s argues that there at 491 U.S. at dissent support 2542. The insufficient evidence to Lee’s convic- at tion, specifically, that there is no evidence the imminent lawless action ex- articulated 444-49, purpose advocating ception Brandenburg, 395 that Lee acted for the U.S. violence, 1827-31, likely the use of force or or was to where defendant Judge Lay’s rally, produce Ku such action. dissent convicted for actions at a Klux Klan argue that even if Lee and his co- burning goes which of a on to included the agreed to advocate the use of incite the use of violence and such a conspirator result violence, likely there was no evidence occur. Brandenburg, force or to See to threaten or cre- conspirators intended jury A could among fear of violence ate a reasonable also find that Lee’s actions involved the Tamarack residents. against threatened use of force the residents apartments, of the or at least intended to evidence, sufficiency viewing

In reasonably to cause the residents fear that light in the most at the evidence we look Claiborne, force was imminent. accept government and favorable to the Cf. (no at 3434 support- evidence that all reasonable inferences established States, “authorized, ratified, directly v. United defendant the verdict. Glasser violence”). 86 L.Ed. threatened acts-of (1942); Yagow, 953 F.2d States United jury acquitted The fact that Lee on Cir.1992). (8th Looking at the evi- II Count of the indictment is of little conse- light, jury reasonably in this could dence quence when we consider the evidence as to to burn the cross for find that Lee intended light I in the Count most favorable to the purpose advocating the of force or use II, government. among things, Count other likely pro- and his actions were violence requiring jury was a substantive count addition, such action. the record duce actually find that Lee force or used jury finding supports a that Lee intended against threat of force the black residents of a reasonable fear of vio- threaten or create apartments the Tamarack in violation of their among the lence Tamarack residents. rights occupy apartments. to rent and Jahr, person up Wérner who came 3631(a). I, See U.S.C. Count con- cross, burning with the idea testified count, spiracy only required agreement burning thought that he of cross as “violence intimidate, persons threaten or in the exer- toward blacks.” He also testified that he and cise of their secured the Constitu- Lee decided to burn the cross “to make a tion or the laws of the United States. See 18 statement, our leave kids alone.” burning that his intent in Jahr admitted cross was to scare and threaten the blacks in attempt A could also view complex, and that he wanted them the whole conceal role in the cross as evi- complex. person Another to move out dence that Lee’s intent Kositzke, party, Christine testified protected activity advocating was not the going that told her he was to a Lee burn unprotected activity an idea but was the something people cross to do about “the. that threatening intimidating the residents (sic) upstairs, lived and that would see' she apartments. drinking group Lee told the something she had never seen before.” Mrs. burning who witnessed the cross not to tell Miller, Lee, a witness called was asked anyone burning, about the cross and advised burning what a cross means in the South teenagers them to some for the act. blame else, anywhere and she stated: intimidation; Well it is a form of the ku Judge Lay’s statement that there was no threats; promises klux klan uses it for a rea- evidence that Lee intended to create

violence, thing. and that sort among of violence sonable fear Tamarack From what I understand a lot of the with the testi- residents cannot be reconciled burnings during in the south civil cross mony of the black residents who witnessed preceded hangings movement and burning. that the cross Pearl Jones testified course, thing. being that sort of a Of cross, burning she saw the that she was (sic) black, that is what is to mind. calls afraid, apart- and that the children in her burning ment with who saw the cross testimony, jury her From this a could reason- that crying. were afraid and She testified ably burning conclude that intent in burning she believed the cross was directed simply advocating the' cross was more than her, group that was afraid the testimony, the use of violence. From this a she jury up.” might up could find that Lee burnt the cross to “come here and burn us trial, jury the new should the fact that a new trial. At much of Lay makes

Judge party after the instructed that it cannot convict Count joined the Lee Pearl Jones finding negates this I that Lee’s actions were done that unless finds burning, and cross likely to result of force or were the intent to advocate use actions that Lee’s of, likely produce matter law. action as a such lawless violence and were imminent joined drinking action; Pearl Jones of that Lee intended threaten The fact that however, burning, has Apartments, Tamarack or at group after residents of the Lee intended to nothing with whether of the Ta- to do least intended to cause residents reasonably residents. Apartments or intimidate the black fear the threaten marack police after In addi- Jones testified use of imminent force or violence. Pearl came, people outside with two other judges joining opinion, she went tion to the why they group to find out Lay, talk to the and Morris S. Arnold Judges Loken testified the cross. Another witness we reach and in the burned concur in the result apart- returned to her judgment. after Pearl Jones court’s ment, frightened and stated that she she was LAY, Judge, concurring and Circuit Senior up “apart- afraid that when she woke dissenting, LOKEN and with whom everybody ment would be burned down ARNOLD, SHEPPARD Circuit MORRIS be lulled.” would join. Judges, Jones, event, any Pearl there In besides witnesses, I would think there could be little doubt who testified about were other requires instruction Angie that error the court’s burning. their reaction to the cross conspir- conviction for Jones, twelve-year daughter, reversal of defendant’s Pearl old Jones’ acy § 241. therefore under 18 U.S.C. We burning that she understood that testified join Judge reached John R. trying the result people were cross meant “white However, go blacks,” opinion. we would she Gibson’s get rid of the and that when further hold that there exists insufficient burning felt “scared and saw the cross she conspira- a-retrial on the sad,” somebody evidence to sustain would come and was “afraid cy count. away.” up in the hall and take us Another Apartments the Tamarack testi- resident of present In the case the district court ex night fied that she was with Pearl Jones jury pressly that to threaten instructed 11, 1990, August saw the require under did not “a or intimidate really and that were scared “[t]he kids physical or the intimidation of threat of force really asking upset.” the kids were She said physical Clearly fear.” this was fundamental questions wanting going know what was protects The First Amendment error. “they going on and whether to hurt us.” [are] speech including ethnic “virulent and reli light history of violence associated Eichman, gious epithets.” United States Klan, with the Ku Klux could reason- (cid:127) ably conclude that Lee’s intent In NAACP v. Claiborne to threaten violence. Accord- was Co., 886, 902, Hardware 458 U.S. 102 S.Ct. ingly, from a sufficient evidence exists which 3420, (1982), 3409, 1215 73 L.Ed.2d Charles reasonably could conclude that burn- (the Secretary Field of the NAACP in Evers acts of the cross Lee intended to threaten gave speech calling boy Mississippi) a for a against violence of the the black residents businesses in which he cott of white-owned apartment or at to cause the least intended any you going we catch of “[i]f threatened reasonably immi- residents to fear the use of stores, gonna any of them racist we’re break nent force or violence. your Supreme damn neck.” The Court held protected speech. Accordingly, we Lee’s conviction this threat to be Id. at reverse 927, indictment, on Count I remand for 102 at 3433.1 of the S.Ct. likely produce pres Chicago,

1. a clear and See also Terminiello v. 337 U.S. unless shown (1949) ("free danger that 69 S.Ct. L.Ed. 1131 ent of serious substantive evil rises inconvenience, absolute, public annoyance, speech, though dom of is neverthe far above unrest”) omitted); (citation City protected against censorship punishment, R.A.V. less v. St. of majority My disagreement opin with the First Amendment. The Court made clear (1) distinguish that: ion is it fails to between the I, conspiracy upon conviction under Count guarantees constitutional free II, was convicted .and Count

which Lee speech press permit and free do not 3631(a) § charge substantive under U.S.C. State to proscribe advocacy forbid or (1988)2 acquit of which the defendant was the use of force or of except law violation ted; doing and in so it fails to evaluate advocacy where such inciting directed to the total lack of evidence to sustain the con producing imminent lawless action and spiracy count. is, likely to produce incite or such action. 447, § question There can be little 241 as Id. at applied present in the case focuses on Lee’s majority’s analysis The focuses on two recent conduct, wit, expressive burning of the Johnson, ca 397, ses— T exas v. 491 U.S. verbally cross. Lee did not threaten or in 2533, (1989), 109 S.Ct. 105 L.Ed.2d 342 anyone. timidate He burned a cross “to take 312, Barry, 1157, Boos v. 485 U.S. 108 S.Ct. “maybe ... stand” and bad blacks (1988) reasoning L.Ed.2d 333 that viola — ' message seriously

would take the and tion of First rights “depends Amendment leave.”3 likely impact” communicative of the con- Lee, Boos, duct In burning

It is difficult to infer that involved. the Court noted that cross, advocating government’s justification was use force or for the ordi- However, violence. even if such an obscure nance at issue impact” focused on the “direct intent, may imply inference speech of the on its audience. 485 321, Supreme Court has clear “the made mere 108 S.Ct. at Similarly, 1163-64. advocacy of of force use or violence does not Johnson the issue of whether the protection remove from the flag depended violated the law on the Claiborne, “likely First Amendment.” impact 458 U.S. at communicative of [Johnson’s] 927, (emphasis original). expressive at 3433 conduct.” 491 U.S. at S.Ct. at 2543. Ohio, Brandenburg v. 395 U.S. (1969), present 23 L.Ed.2d 430 white su Unlike the Johnson and Boos premacists gave speeches conspiracy burned a cross and did not involve the under 18 express “bury niggers.” with threats to charged Johnson was (the Id. at 446 n. n. 1. object flag) & 89 S.Ct. at 1829 The desecration of a venerated arranged defendant for a television station'to of Texas Penal Ann. 42.- violation Code 09(a)(3) (1989). broadcast and the evidence offered speeches. He was convicted under the impact Ohio the state to show the communicative Syndicalism flag burning testimony Criminal statute. The was the conviction, finding persons, Court reversed the several who stated that it had seri- conduct, 408, 109 although highly ously defendant’s intimi offended them. Id. at S.Ct. at dating, protected peace actually nevertheless tinder 2541. No disturbance of the Paul, Minnesota, - U.S. 3. There little should be doubt Lee’s conduct (1992); Chaplinsky "sufficiently 120 L.Ed.2d 305 v. New imbued with elements com Hampshire, scope 315 U.S. 86 L.Ed. munication to fall within the of the First (1942); Smith, (7th Spence Collin 578 F.2d 1197 and Fourteenth Amendments.”' v. Wash denied, Cir.), 409-41, cert. ington, (1978). interesting 2729-3052, For an discus prose sion of distinctions between and un- conspiracy cution was aimed at Lee’s anof ex conduct, protected symbolic threat, see Charles H. pressive applying § therefore 241 to the Jones, Proscribing Hate: Distinctions Between alleged obviously conspiracy was directed to Expression, Criminal Harm and Protected 18 Wm. suppressing regu ward communication and not Mitchell L.Rev. 935 lation of non-communicative conduct. Under circumstances, agree Judge such we with John O’Brien, opinion jury acquitted R. Gibson’s that United States v. 2. The Lee on Count II of the charged interfering 391 U.S. (1967), indictment which him with housing rights by applicable. of force or is not Id. at 88 S.Ct. at means threat of 3631(a) (1988). § in of 42 U.S.C. violation force Smith, F.2d See Collin of actionable. occur to because or threatened occurred Cir.1978). (7th burning. Id. The flag

Johnson’s of a possibility the mere out that pointed Boos, Moreover, in the in as Johnson to not sufficient peace was breach disrup- no evidence of prosecution produced advocacy expressing dissat- symbolic punish fully ignited The cross never tive conduct. they are.” Id. “conditions over briefly, sixty isfaction sec- very than less and burned 408-09, at 2541-42. at occurred after the of violence onds. No acts burning, the cross Shortly after incident. conspiracy. involve a similarly did not Boos Jones, apart- the of Pearl the black resident § 22-1115 charged under Boos cross that she saw the ments testified who display prohibiting Code District of Columbia joined balcony, defendant and from her foreign feet of a within 500 signs of odious pizza; picnic for beer and friends at a table at 1160. at embassy. hours, few dis- partied with them for a she unconstitution display clause holding the apartment problems the cussing racial regulation to be al, Court, the found expressed Merely because Lee has complex. and held restriction content-based a belief which through burning the cross speech was not a “second impact of emotive reprehensible not society regards as does ary effect.” Id. action will fol- imminent lawless mean that Johnson, in Court noted low. As the the suffi appeal addressed present If the “we have not U.S. at the substantive ciency of the evidence to permitted the assume 3631(a),4 Boos Johnson under offense provocative every expression of a idea will insuf finding that there was require a would riot_” incite a us to the record before ficient evidence opinion, majority line of the In the last Indeed, jury sustain conviction. analysis from the immir suddenly shifts its violating this acquitted Lee agreed when it suggests action standard and nent lawless Lee’s con- shows that section. evidence jury could find that Lee’s conduct that the to was not the cross directed duct unprotected threat. cross placed action.' Lee inciting lawless imminent Thus, majority requires the district court family’s particular front of a not in cross may if it that it convict to instruct the window, in a field some 386 apartment the resi- “Lee intended to threaten finds that buildings, than more apartment from feet or at Apartments, the Tamarack dents of is no field. There length of a football cause the residents of least intended attempted to call black that Lee evidence reasonably fear the Apartments Tamarack burning cross. residents’ attention Maj.Op. force or use of imminent violence.” arm, light along one failed to When of evidence to As with the lack it. attempt reignite not Lee did action, any lawless this stan- show imminent to take he burned statement that as a matter of law. not been met dard has leave maybe the blacks would and that stand light analyzed through must be Nazi march Threats than the is no different factual See United Skokie, Illinois, message intoler- their entire context. where (9th Gilbert, yet not States v. F.2d advocated and ance to Jews was rental, any 3631(a) financing occupation dwell- or provides: 4. 42 U.S.C. any participating applying or ing, or for Whoever, acting color whether or not under service, facility relating organization, or law, willfully or threat of force force renting dwellings; selling or business of with, or at- injures, or interferes intimidates tempts or with— injure, intimidate interfere race, color, (a) any person of his because $1,000, impris- or not more be fined than shall sex, (as handicap de- religion, term is such both; year, and if one not more than title), oned familial 3602 of fined section bodily injury fined more results shall be (as defined in section status such term is $10,000, imprisoned not more ten than title), origin than or national 3602 of this both; years, and if results shall death purchas- selling, has been because he is or any years subject imprisonment term of occupying, ing, renting, financing, or con- sale, negotiating purchase, or life. tracting for for denied, Cir.1989), conspirator cert. 493 U.S. Lee and his fellow intended (1990). Here, 1140, 107 L.Ed.2d 1044 only express viewpoints to their about blacks events, surrounding considering the the cross symbolically, may a view'which repugnant be burning not a threat. The was not cross but which is speech. nonetheless individual, particular focused on one comprehend It is difficult for me why, to placed away rather was 386 feet from a object conspiracy symbolic when the of the three-building apartment complex (see not unlawful v. Texas John —is majority least 15 black families. The cites son, 491 U.S. testimony of several that the witnesses (1989), Barry, L.Ed.2d 342 and Boos v. burning caused them to be afraid. U.S. testimony ap- This on the diffused effect of (1988)), conspiracy (planning sym of the prehension way prove immi- no tends to speech) may bolic prosecut- nevertheless be nent lawless action or intent to threaten. conspiracy charge, ed. In a type discredited this prove knowingly must -that the defendant reasoning twenty-five years ago, almost when agreed party to conspiracy, become a appre- it stated that “undifferentiated fear or conspirators that the intended to do an un enough not hension disturbance is to over- act, lawful and that an overt act was commit right expression.” come the to freedom of conspirators ted one of the in furtherance Indep. Community Tinker v. Des Moines of the conspiracy. generally Barry See Tar Dist., 503, 508, School low, Conspiracy a Federal Prose Defense of (1969). 737, 21 L.Ed.2d 731 cution, 183, 186-209 (1978). 4 J.Crim.Defense Moreover, object conspiracy must case, however, present In the we deal with be unlawful. at 201-02. question of whether there existed a con- (an spiracy agreement) “injure, oppress, to Even if conspirators Lee and his fellow threaten, “any or intimidate” an individual in agreed had to advocate the use of force or right privilege him secured to violence, proposition highly I find States,” Constitution or laws of the United speculative, then the critical issue is whether right occupy dwelling here the to free of planned advocacy was “directed to incit- force or threats of force. producing imminent lawless action” “likely produce to incite or such prosecuting conspiracy In a criminal Ohio, Brandenburg action.” actually the evidence of what occurred does 1827, 1829, necessarily proof conspira defeat L.Ed.2d (1969). majority suggests may cy. agreement The focus that Lee must be if coconspirator on what Lee his Lee intended to cause intended. convicted evaluating particular conspiracy apartments “reasonably residents of the charge question However, under 18 fear” that force was imminent. conspirators whether Lee and his fellow proper question, if different facts existed threaten, “injure, agreed oppress, or in presented here, conspira- than is whether the exercising timidate” an individual from tors, by burning cross, intended that Here, right housing. immediate violence or force would ensue. coeonspirator Lee and the intended to advo Here, considering all of the facts and circum- cate “bad blacks should leave.” This leading up stances to the actual agreement, agree was the extent of the cross, there is no credible evidence that ment that involved the intent use coconspirators willfully Lee and his intended symbolic speech message. send There is or, produce imminent violence or force conspira no evidence that Lee and his fellow matter, a reasonable fear that lawless plotted purpose tor to burn the cross for the action was imminent. advocating the use of force or violence. basis, judgment I Co., On this would vacate the See NAACP v. Claiborne Hardware and remand to the district court conviction judgment acquittal. to enter a 1308 (1984) (Roberts). According- 462 82 L.Ed.2d

McMILLIAN, Judge, with whom Circuit conviction. would affirm the BEAM, ly, I dissent and FAGG, and Circuit MAGILL dissenting. join, Judges, expressive con- limitations on Government freedom of an individual’s do not violate duct the colour of irrespective of Everyone, government has the consti- if: the expression through our to walk skin, is-entitled it; regulation power regulate tutional erect, heads with their peace, streets govern- important or substantial furthers an the law As far as fear.... and free from interest; governmental interest is ment to think what are entitled you is concerned expres- suppression of free unrelatéd to the- thoughts; your like, foul you however sion; incidental restriction first and the like, and however brutal you feel what greater no than is freedoms is amendment emotions; say you what your debased of that interest. furtherance essential to the infringe the you do not providing like O’Brien, S.Ct. at 1679. 391 U.S. 88 ..., you once translate but rights of others analysis reaffirmed was The O’Brien feelings into thoughts and brutal your dark v. Glen The Court Barnes will be swift to ... the law savage acts — Inc., U.S. -, atre, protect your vic- ... and to you, punish (.Barnes). (1991) In Barnes the tims. government’s interest in held that “Nigger-Hunt Nine Four-Year Terms for morality order was protecting and societal Youths, Cyril Barnet (Quoting Justice ing” expres- suppression of free “unrelated to youths nine he sentenced at the time Salmon at -, (plurali sion.” Id. S.Ct. guilty to crimes pleaded various who had' at -, S.Ct. at 2463 ty opinion); id. Notting around London’s committed and at -, (Scalia, J., concurring); id. S.Ct. 16,1958, Times, area.) Sep. London Hill (Souter, J., concurring). While at 2468 to which the agreeing dancing applied had a at issue was Indiana statute majority’s view accept the I cannot element,” “communicative the Court conclud variety conduct apparently limitless “an dancing that not the ed that “it was ‘speech’ whenever [protected] can be labeled simply being done in the prohibited, its intends in the person engaging conduct at -, (plurali at 2463 nude.” Id. States express an idea.” United thereby to ty opinion). O’Brien, v. pres- (1967) (O’Brien). Applying O’Brien standard 20 L.Ed.2d § 241 that 18 clear U.S.C. fact, regulation ent not shielded from “acts are did not violate applied to- Lee they express discriminato merely because he freedoms because was not City v. Amendment. R.A.V. St. ry philosophy.” idea in an burning a effort to Paul, , convicted for pro- § 241 express an Title 18 U.S.C. idea. 2538, 2546-47, 120 L.Ed.2d federally conspiracies to (R.A.V.). interfere Lee was not hibits present case In the Congress power has the protected rights. expressing an prosecuted convicted and under under the Fourteenth Amendment point of view. He philosophical idea or a prohibit interfer- Clause he con- the Commerce convicted because prosecuted and legal rights constitutional and Afri- ence with and intimidate spired to threaten Cong., S.Rep. No. 90th Tamarack of others. See residents can-American 2, reprinted in 1968 federally- U.S.C.C.A.N. 2d Sess. exercise of their Apartments (discussing au- constitutional rights. conduct is 1841-43 housing Such guaranteed enacting 42 thority for by the First Amendment.be- 241). Furthermore, amending potentially 18 U.S.C. types of or other cause “[violence protecting an interest in government has produce special expressive activities in the free im- the citizens of United States their communicative distinct from harms legal of their constitutional exercise no constitutional are entitled to pact right they where including the to live Jay- rights, States Roberts United protection.” threats, oppression, without fear cees, choose 104

1309 intimidation, injury, or interference. Title 18 S.Ct. at the Court held that those legiti- categories § this specifically 241 furthers could be “made the U.S.C. vehicles by criminalizing government interest for content discrimination unrelated to mate distinctively proscribable interferes with the free exer- conduct which content.” Id. Hence, rights. the Court cise of such concluded certain cate gories expression may proscribed of be on prohibiting government’s The interest at -, one basis but not on others. Id. 112 conspiracy rights is to interfere with such S.Ct. suppression expres- of free unrelated to the only prohibits applied analyzing regulations, 241 as In sion. Section content-based the conspiracy willfully intimidate or interfere Court R.AV. articulated some restrictions legal enjoyment the and that would survive exercise First Amendment scruti ny. In rights by identifiable victims because of their the first instance the Court indicated color, expression advocacy race or not the “when the basis for the content discrimi entirely very to which restriction nation of ideas. The extent consists reason incidentally right freely speech ex- the proscrib affects Lee’s entire class of at issue is able, by burning great- significant is no no press danger himself a cross of idea or view point than essential to further the substantial discrimination er is exists.”5 Id. at important government and interést 112 S.Ct. at 2545. words, ability by the statute. In other Supreme Court also determined that only a cross is restricted if done with burn government may make content-based dis- specific conspire intimidate intent to . among expression tinctions subclasses of enjoyment exercise threaten the free [particular] happens where “the subclass legal rights of others. particular ‘secondary be associated with ef-

Contrary majority’s argument, speech, regulation fects’ of the so that the is Supreme ‘justified in R.AV. did not hold that without Court reference to the content of ” burning” symbolic pro- at -, expression speech.’ “cross Id. 112 S.Ct. at Amendment; rather, Theatres, by (citing Playtime tected the First 2546 Renton v. Inc., 925, 929, Court held that cross could have 106 89 S.Ct. (1986)). punished By way explanation, been under a number of stat- L.Ed.2d 29 — utes. & n. 112 S.Ct. at the Court indicated that “since words can in U.S. — n. 2541 & 1. R.A.V. the Court determined some circumstances violate laws directed not (a expression against speech against that the form of reached conduct law treason, proscribable against example, Minnesota statute at issue was is violated “fighting telling enemy words” defense se- under doctrine. How- nation’s . ever, crets), particular subcatego- the court that the content-based ordinance concluded facially ry proscribable speech can pro- unconstitutional because it class of permitted solely swept up incidentally of a speech hibited “otherwise within the reach subjects at conduct rather than the basis of the address- statute directed —, 112 R.A.V., at -, speech.” es.” Id. S.Ct. at 2542. U.S. at omitted). (citations at 2546 concluding fighting certain While that. Title words could consistent with the First Court cited VII § regulated Rights Act of 2000e- Amendment “be because their Civil (ob 2, Opportunity constitutionally proscribable Equal Employment Com- content defamation, etc.),” at -, scenity, prohibiting sexual harass- id. mission Guidelines occur) special example type applied of restriction the will have force when As of this R.A.V., - U.S. pointed § Court to 18 U.S.C. the federal person the -, President.” prohibits against statute that threats the life of citing Watts v. United 112 S.Ct. at the President. The Court concluded that this statute was valid "since the reasons States, 705, 707, 1399, 1401, why threats However, L.Ed.2d of (protecting are outside the First Amendment violence against prohibit cannot threats the President violence, from the fear of individuals specific policy. of a that are made as result disruption engenders, from the that fear , - U.S. — possibility that violence from the the threatened Mitchell, U.S. -, -, 1604.11; consin workplace, 29 C.F.R. ment (1993) §§ 242; and 42 U.S.C. 18 U.S.C. (Mitchell); v. Claiborne see also NAACP that are directed example of statutes Co., expression. The Hardware than rather against conduct (“The “sexually derogatory concluded ” protect vio Amendment does can be First workplace in the ‘fighting words’ lence.”). pro- of Title VIPs prohibited as a violation employ- in gender discrimination scription of majority’s conclu- disagree with the I also — at -, R.A.V., 112 at S.Ct. U.S. ment. in Supreme decision that the Court’s sion violates Title YII harassment 2546. Sexual analysis the of this does not affect Mitchell effect of unrea- purpose the when it “has majority acknowledged, the has case. As work sonably interfering with individual’s 1298, upheld a supra in Mitchell the Court at intimidating, creating an hos- performance or penalty an enhanced providing for statute tile, working 29 environment.” or offensive ac- selects his victim on where a defendant 1604.11(a)(3) (1988). Additionally, § C.F.R. color, race, religion, count of the victim’s law to discriminate of federal it is a violation orientation, origin, disability, national sexual “race, color, reli employment because concluding prohibited ancestry, that the sex, 42 origin.” U.S.C. gion, or national by First unprotected the conduct 2000e-2(a)(1) (1988); § see also Internation — at 113 Id. U.S. Amendment. v. United Teamsters al Brotherhood of In Mitchell the Court also at 2201-02. S.Ct. States, n. 431 U.S. 335 bigotry expression of held that a defendant’s (“Undoubt 15, L.Ed.2d 396 1854 n. 52 constitutionally the may be used “to establish the most obvi- edly disparate treatment was prove motive or of a crime or to elements Congress had in mind when enact- ous evil Thus, Supreme Court once intent.” Id. VII.”). Therefore, ed Title First again the axiom that restated an individual’s may prohibit interference with by a statute on Amendment is not violated status, even in circumstances employment moti- ground proscribes that it conduct solely of consists where the interference -,at 113 by discrimination. Id. vated govern- speech. conduct that the It is the Roberts, 2200, citing 468 U.S. S.Ct. expressive content of prohibits, not the ment 3255; King Spald 104 Hishon v. & S.Ct. speech. 2229, 2235, ing, 104 81 467 U.S. S.Ct. (1984); Runyon McGrary, 427 59 v. Lastly, in R.A.V. determined L.Ed.2d the Court 160, 176, 2586, 2597, 96 49 L.Ed.2d regulation would not be U.S. S.Ct. that a content-based 2000e-2(a)(1); (1976); § 42 18 U.S.C. prohibited if nature of the content dis 415 “the 242; §§ § 42 1981 and 1982. U.S.C. that there is no realistic U.S.C. crimination is such suppression of ideas is possibility that official Mitchell, 18 to the statute Similar at -, S.Ct. afoot.” U.S. § at conduct 241 is a statute directed analysis, careful After is not within the ambit did not concluded that the St. Paul Ordinance expres- regulate Amendment. It does not exceptions. any fall of the above within categories proscribable prohibits sion but at -, 112 S.Ct. at intended to interfere with expressive conduct conclusion, rights of others in the exercise of Contrary majority’s R.A.V., federally guaranteed rights. reinforces the conclusion decision R.A.V. at -, at 2548-49. intentionally con- convicted for U.S. that Lee was consistently upheld been as a 241 has and intimidate others Section spiring to threaten authority governmental that is valid exercise of conduct violation of 18 U.S.C. guaranteed by the laws of rights the First Amend- enforce protection outside Johnson, See, e.g., States v. the land. United ordinance struck down “[t]he ment. Unlike 563, 565, explicitly directed [which] R.A.V. (1968) (“18 U.S.C. § ...), (i.e., ‘messages,’ expression ‘speech’ or L.Ed.2d .... noted, ‘in the free exer- protects the citizen at conduct the statute in this case is aimed any right privilege enjoyment of cise or unprotected by Amendment.” Wis- the First tionally, by physical or laws of their fear of harm to him the Constitution was cor- secured ; States.’”) Therefore, v. roborated another United States witness. the United Guest, 1170, 1178, there was substantial evidence to convict Lee (1966) (“It violating any is also well settled error in instruct- that the federal commerce threaten or “[t]o in our decisions intimidate legislate require power Congress physical authorizes does not a threat of force or fear,” physical protection of individuals' from violations intimidation of Tr. at impinge on their free was harmless. of civil commerce.”) (cita in interstate movement Moreover, support majori- I find no for the Price, omitted); tions United States ty’s proposition only way that the that the 1152, 1159, 16 L.Ed.2d ap- First Amendment is not violated (1966) (“§ 241 it is must be read as plication §of 241 is if limited to threats of injure conspiracies ... written —to reach ‘to fact, physical the imminent use of force. In any enjoyment citizen the free exercise or requirement such a would invalidate a num- ’; right privilege ... lan- any of or expressly prohibiting ber of criminal statutes guage privileges protected or includes through threats of harm nonviolent means. Amendment”). Hence, by the Fourteenth 601(a) See, e.g., (prohibiting §§ 18 U.S.C. application of 241 to Lee does not campaign solicitation of contributions right expres- of free violate his Constitutional through of threats the loss of sion. benefits), employment (prohibiting or “a majority informing against any threat ... Today the reverses Lee’s convic- of violation States”), any I with instructions that he of law of the United tion Count (“threat jury procuring employ- instructed that of dismissal from should be retried and 875(d) (“threat ment”), injure property if it should convict him it finds that reputation.... any intent to “Lee’s actions were done with the or or threat to accuse the crime”), (same), ... of a advocate the use of force violence and addressee 891(7) action; (same); likely produce (defining or that “extortionate were such threaten, express implicit “an Lee intended to the residents of the means” to include Apartments, threat or other criminal Tamarack or at least intended violence person, reputa- Apart- residents of the Tamarack means to cause harm to the cause any reasonably property person”). fear the use of imminent tion or ments to Supra, at Al- force or violence.” Furthermore, persuaded by I am not jury may though the instructions as a whole Ohio, majority’s Brandenburg reliance on inconsistent, have been somewhat given similar to that advo- an instruction may (Brandenburg), be majority: cated “In order to consti- applied prosecution long as as it is I, conspiracy tute a criminal under Count punishing expression “directed to limited to have been taken defendant’s actions must inciting producing action imminent lawless specific or inter- with the intent to intimidate likely produce to incite or such action.” and is occupy right fere with the residents^] Brandenburg, In dwelling free of force or threats force.” applied to a held that a criminal statute as Tr. at 519. rally Kú Klux Klan violated the First concedes, present majority sup- “the Amendment. Unlike the As the record distinguish jury finding failed to between ports a that Lee intended to Ohio statute teaching neces- vio- “the mere of ... threaten or create a reasonable fear of abstract group among sity “preparing for lence the Tamarack residents.” Su- for violence” and Jones, family Id. at pra, at 1303. Pearl her violent action.” Thus, Brandenburg, the Klansmen were friends saw the from her balco- cross violating pur- daughter a statute which ny. Both Pearl Jones and her convicted merely advocating they ported punish them testified that were afraid that whoever contrast, Lee up proscribed conduct. going had burned the cross was to come certain mere was'prosecuted and convicted not for apartment. and burn them out of their Addi- conduct, pro- but for proscribed advocacy of conduct, a cross conspiracy to burn

scribed intimidating directly purpose

for the residents African-American

threatening the apartments. the Tamarack burning a circumstances

Although some advocacy, may considered mere

cross specific burning is done with cross

where threaten identifiable to intimidate and

intent here, firmly I believe that

victims not conduct dissent respectfully I Amendment. conviction: affirm Lee’s

and would Petitioner, WHITE,

Pupi AND

IMMIGRATION SERVICE,

NATURALIZATION

Respondent. 92-2949.

No. Appeals, Court of

United States

Eighth Circuit. March

Submitted

Decided Oct.

Case Details

Case Name: United States v. Bruce Roy Lee

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 7, 1993

Citation: 6 F.3d 1297

Docket Number: 90-5264

Court Abbreviation: 8th Cir.