San Francisco Arts & Athletics, Inc. v. United States Olympic Committee

Justice Brennan,

with whom

Justice Marshall joins, dissenting.

The Court wholly fails to appreciate both the congressionally created interdependence between the United States Olympic Committee (USOC) and the United States, and the significant extent to which § 110 of the Amateur Sports Act of 1978, 36 U. S. C. §380, infringes on noncommercial speech. I would find that the action of the USOC challenged here is Government action, and that § 110 is both substantially overbroad and discriminates on the basis of content. I therefore dissent.

I

For two independent reasons, the action challenged here constitutes Government action. First, the USOC performs important governmental functions and should therefore be considered a governmental actor. Second, there exists “a *549sufficiently close nexus between the [Government] and the challenged action” of the USOC that “the action of the latter may be fairly treated as that of the [Government] itself.” Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974).

A

Examination of the powers and functions bestowed by the Government upon the USOC makes clear that the USOC must be considered a Government actor. It is true, of course, that the mere “fact ‘[t]hat a private entity performs a function which serves the public does not make its acts [governmental]’ ” in nature. Ante, at 544 (quoting RendellBaker v. Kohn, 457 U. S. 830, 842 (1982) (emphasis added)). Such a definition, which might cover “all. . . regulated businesses providing arguably essential goods and services,” would sweep too broadly. Jackson, supra, at 354.

The Court has repeatedly held, however, that “when private. individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Evans v. Newton, 382 U. S. 296, 299 (1966) (emphasis added). See Terry v. Adams, 345 U. S. 461 (1953) (private political association and its elections constitute state action); Marsh v. Alabama, 326 U. S. 501 (1946) (privately owned “company town” is a state actor). Moreover, a finding of government action is particularly appropriate when the function performed is “traditionally the exclusive prerogative” of government. Jackson v. Metropolitan Edison Co., supra, at 353. Patently, Congress has endowed the USOC with traditional governmental powers that enable it to perform a governmental function.1

*550The USOC performs a distinctive, traditional governmental function: it represents this Nation to the world community. The USOC is, by virtue of 36 U. S. C. §§374 and 375, our country’s exclusive representative to the International Olympic Committee (IOC), a highly visible and influential international body. The Court overlooks the extraordinary representational responsibility that Congress has placed on the USOC. As the Olympic Games have grown in international visibility and importance, the USOC’s role as our national representative has taken on increasing significance.

Although the Olympic ideals are avowedly nonpolitical, Olympic participation is inescapably nationalist. Membership in the IOC is structured not according to athletes or sports, but nations.2 The athletes the USOC selects are viewed, not as a group of individuals who coincidentally are from the United States, but as the team of athletes that represents our Nation. During the House debates on the Amateur Sports Act, Representative Michel expressed it well:

“American athletes will go into these same [1980 Olympic] games as products of our way of life. I do not believe that it is the purpose of the games to set one way *551of life against another. But it cannot be denied that spectators, both in Moscow and all over the world, certainly will have such a thought in mind when the events take place. So it would be good for our nation and for the athletes who represent us if the cooperation, spirit of individuality, and personal freedom that are the great virtues of our system are allowed to exert their full influence in the games.” 124 Cong. Rec. 31662 (1978).

Every aspect of the Olympic pageant, from the procession of athletes costumed in national uniform, to the raising of national flags and the playing of national anthems at the medal ceremony, to the official tally of medals won by each national team, reinforces the national significance of Olympic participation. Indeed, it was the perception of shortcomings in the Nation’s performance that led to the Amateur Sports Act of 1978. In the words of the President’s Commission, “[t]he fact is that we are competing less well and other nations competing more successfully because other nations have established excellence in international athletics as a national priority.” 1 Final Report of the President’s Commission on Olympic Sports 1975-1977, p. ix (1977) (Final Report) (emphasis added).

Private organizations sometimes participate in international conferences resplendent with billowing flags. But the Olympic Games are unique: at stake are significant national interests that stem not only from pageantry but from politics. Recent experience illustrates the inherent interdependence of national political interests and the decisions of the USOC. In his State of the Union Address of January 23, 1980 (a forum, one need hardly add, traditionally reserved for matters of national import), the President announced his opposition to American participation in the 1980 summer Olympic Games in Moscow.3 The opposition was not premised on, e. g., the financial straits of a private corporation, but *552on the implications of participation for American foreign policy. Echoing the President’s concerns, the House of Representatives passed a resolution expressing its opposition to American participation.4 In a speech on April 10, 1980, the President threatened to take “legal actions [if] necessary to enforce the decision not to send a team to Moscow.”5 Shortly thereafter, with the national and international stakes of the USOC’s decision set forth by the President and Congress, and with reports in the press of possible cuts in federal aid to the USOC,6 the USOC announced that the United States would not participate in the 1980 Olympic Games.7 *553Although the lesson had been learned long before 1980,8 this sequence of events laid bare the impact and interrelationship of USOC decisions on the definition and pursuit of the national interest.

There is more to the USOC’s public role than representation. The current USOC was born out of governmental dissatisfaction with the performance of the United States in international athletic competition. This dissatisfaction led Congress to grant the USOC unprecedented administrative authority over all private American athletic organizations relating to international competition. The legislative history reveals, contrary to the Court’s assumption, ante, at 544-545, that no actor in the private sector had ever performed this function, and indeed never could perform it absent enabling legislation.

In 1975, President Ford established a Commission on Olympic Sports to investigate the deteriorating performance of America’s athletes at the Olympic Games, and to recom*554mend solutions. The Commission traced the problems to a lack of central coordination, and “recommend[ed] the institution of a central sports organization for the United States.” 1 Final Report 11-13.

In enacting the Amateur Sports Act, Congress gave life to the Commission’s primary recommendation, that the USOC be restructured9 to assume this new role of “central sports organization.” See H. R. Rep. No. 95-1627, pp. 8-9 (1978). It greatly expanded the charter of the USOC, giving it “perpetual succession and power to serve as the coordinating body for amateur athletic activity in the United States directly relating to international amateur athletic competition.” 36 U. S. C. § 375(a)(1). It also granted the USOC the power to recognize an organization as the “national governing body” for a particular sport, and endowed the USOC with the power to resolve all conflicts and disputes that would arise among the multitude of private organizations and individuals over which it would hold sway. See 36 U. S. C. §§ 375(a)(5), 382b.10 Thus, in the Amateur Sports Act, Congress granted the USOC the authority and ability to govern national amateur athletics related to international competition.

The public hearing and reporting requirements of the Act reflect the public nature of the USOC’s mission. Under *555§ 375(b)(2), the USOC may not amend its constitution or byelaws unless it “gives to all interested persons, prior to the adoption of any amendment, an opportunity to submit written data, views, or arguments concerning the proposed amendment for a period of at least 60 days after the date of publication of the notice.” Similarly, the USOC may not recognize a particular amateur sports organization as the “national governing body” for that sport without first holding a public hearing on the matter. 36 U. S. C. § 391(a). The Act institutionalizes yet another public check on the USOC by requiring it annually to “transmit simultaneously to the President and to each House of Congress a detailed report of its operations for the preceding calendar year, including a full and complete statement of its receipts and expenditures and a comprehensive description of the activities and accomplishments of the [USOC] during the preceding year.” 36 U. S. C. § 382a(a). The USOC must also submit annual “detailed” reports to the President and Congress on the expenditures of funds made available to it by Congress, and provide “detailed and comprehensive” descriptions of the programs it expects to finance out of Government grant money in the coming year. 36 U. S. C. §§ 382a(b), 384(b).

The function of the USOC is obviously and fundamentally different than that of the private nursing homes in Blum v. Yaretsky, 457 U. S. 991 (1982), or the private school in Rendell-Baker v. Kohn, 457 U. S. 830 (1982), or the private Moose Lodge in Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), or even the public utility in Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974). Unlike those entities, which merely provided public services, the USOC has been endowed by the Federal Government with the exclusive power to serve a unique national, administrative, adjudicative, and representational role.11 The better analogy, then, *556is to the company town in Marsh v. Alabama, 326 U. S. 501 (1946), or to the private political party in Terry v. Adams, 345 U. S. 461 (1953). Like those entities, the USOC is a private organization on whom the Government has bestowed inherently public powers and responsibilities. Its actions, like theirs, ought to be subject to constitutional limits.

B

Apart from the argument that the USOC is itself a Government actor, there is a second reason to find Government action. At a minimum, this case, like Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), is one in which the Government “has so far insinuated itself into a position of interdependence with [the USOC] that it must be recognized as a joint participant in the challenged activity.” Id., at 725.12

The action at issue in Burton was the refusal of a private restaurant that leased space in a public parking facility to serve a black customer. Central to the Court’s analysis was what later cases have termed “the symbiotic relationship” of the restaurant to the parking facility. E. g., Moose Lodge, supra, at 175; Rendell-Baker, supra, at 843. This relationship provided the “sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson, supra, at 351.

The USOC and the Federal Government exist in a symbiotic relationship sufficient to provide a nexus between the *557USOC’s challenged action and the Government. First, as in Burton, the relationship here confers a variety of mutual benefits.13 As discussed supra, at 553-556, the Act gave the USOC authority and responsibilities that no private organization in this country had ever held. The Act also conferred substantial financial resources on the USOC, authorizing it to seek up to $16 million annually in grants from the Secretary of Commerce, § 113(a), and affording it unprecedented power to control the use of the word “Olympic” and related emblems to raise additional funds, § 110. As a result of the Act, the United States obtained, for the first time in its history, an exclusive and effective organization to coordinate and administer all amateur athletics related to international competition, and to represent that program abroad.

Second, in the eye of the public, both national and international, the connection between the decisions of the United States Government and those of the United States Olympic Committee is profound.14 The President of the United States has served as the Honorary President of the USOC. The national flag flies both literally and figuratively over the central product of the USOC, the United States Olympic Team. The connection is not lost on the athletes: who can *558imagine an Olympic hopeful postponing a lucrative professional career with the explanation, “I can’t pass up this chance to represent the United States Olympic Committee”? More fundamentally, as Representative Michel observed, it is through our participation in the Games that we display “the great virtues of our system.” 124 Cong. Rec. 31662 (1978).

Even more importantly, there is a close financial and legislative link between the USOC’s alleged discriminatory exercise of its word-use authority and the financial success of both the USOC and the Government.15 It would certainly be “irony amounting to grave injustice” if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech. Burton, supra, at 724. Yet that is exactly what petitioners allege. In § 110 of the Act, Congress granted the USOC not a “normal trademark” but an unprecedented right of “exclusive use of the word ‘Olympic’ without regard to whether use of the word tends to cause confusion,” and without “incorporating] defenses available under the Lanham Act.” Ante, at 530; see Part II-A, infra. The purpose of this grant of unique discretion was to enhance the fundraising ability of the USOC. The Court puts it well:

“Section 110 directly advances these governmental interests [promoting the USOC’s activities] by supplying the USOC with the means to raise money to support the Olympics and encourages the USOC’s activities by ensuring that it will receive the benefits of its efforts.” Ante, at 538-539 (emphasis added).16

*559If petitioner is correct in its allegation that the USOC has used its discretion to discriminate against certain groups, then the situation here, as in Burton, is that “profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.” Burton, 365 U. S., at 724. Indeed,*the required nexus between the challenged action and the Government appears even closer here than in Burton. While in Burton the restaurant was able to pursue a policy of discrimination because the State had failed to impose upon it a policy of nondiscrimination, the USOC could pursue its alleged policy of selective enforcement only because Congress affirmatively granted it power that it would not otherwise have to control the use of the word “Olympic.” I conclude, then, that the close nexus between the Government and the challenged action compels a finding of Government action.

C

A close examination of the USOC and the Government thus reveals a unique interdependence between the two. Although at one time amateur sports was a concern merely of private entities, and the Olympic Games an event of significance only to individuals with a particular interest in athletic competition, that era is passed. In the Amateur Sports Act of 1978, Congress placed the power and prestige of the United States Government behind a single, central sports organization. Congress delegated to the USOC functions *560that Government actors traditionally perform — the representation of the Nation abroad and the administration of all private organizations in a particular economic sector. The representation function is of particular significance here, in my view, because an organization that need not adhere to the Constitution cannot meaningfully represent this Nation. The Government is free, of course, to “privatize” some functions it would otherwise perform. But such privatization ought not automatically release those who perform Government functions from constitutional obligations. Because the USOC performs a Government function, and because its challenged action is inextricably intertwined with the Government, I would reverse the Court of Appeals finding of no Government action, and remand to the District Court for further proceedings.17

II

Section 110(a)(4) prohibits “any person” from using the word “Olympic” “[without the consent of the [USOC] for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition.”18 The Court construes this section to give *561the USOC authority over use of the word “Olympic” which far surpasses that provided by a standard trademark. The Court ignores the serious First Amendment problems created by its interpretation. It holds that § 110(a)(4) regulates primarily commercial speech, and that this section imposes only those incidental restrictions on expressive speech necessary to further a substantial governmental interest. Ante, at 535-541.19

I disagree. The statute is overbroad on its face because it is susceptible of application to a substantial amount of noncommercial speech, and vests the USOC with unguided discretion to approve and disapprove others’ noncommercial use of “Olympic.” Moreover, by eliminating even noncommercial uses of a particular word, it unconstitutionally infringes on the SFAA’s right to freedom of expression. The Act also restricts speech in a way that is not content neutral. The Court’s justifications of these infringements on First Amendment rights are flimsy. The statute cannot be characterized as a mere regulation of the “manner” of speech, and does not serve any Government purpose that would not effectively be protected by giving the USOC a standard commercial trademark. Therefore, as construed by the Court, § 110(a)(4) cannot withstand the First Amendment challenge presented by petitioners.

A

The USOC has held a trademark in the word “Olympic” since 1896, ante, at 533, and § 110(a)(3) of the Amateur Sports *562Act perpetuates the USOC’s protection against infringement of its trademarks. To be more than statutory surplusage, then, § 110(a)(4) must provide something more than a normal trademark. Thus, the Court finds that § 110(a)(4) grants to the USOC a novel and expansive word-use authority.20 In my view, the Act, as interpreted by the Court, is substantially overbroad, violating the First Amendment because it prohibits “a substantial amount of constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494 (1982). The Amateur Sports Act is substantially overbroad in two respects. First, it grants the USOC the remedies of a commercial trademark to regulate the use of the word “Olympic,” but refuses to interpret the Act to incorporate the defenses to trademark infringement provided in the Lanham Act. These defenses are essential safeguards which prevent trademark power from infringing upon constitutionally protected speech. Second, the Court construes § 110(a)(4) to grant the USOC unconstitutional authority to prohibit use of “Olympic” in the “promotion of theatrical and athletic events,” even if the promotional activities are noncommercial or expressive. Ante, at 535, 540-541.21

*5631

The first part of § 110 prohibits use of the word “Olympic” “for the purpose of trade” or “to induce the sale of any goods or services.” There is an important difference between the word-use authority granted by this portion of §110 and a Lanham Act trademark: the former primarily affects noncommercial speech,22 while the latter does not.23

Charitable solicitation and political advocacy by organizations such as the SFAA24 may in part consist of commercial *564speech regulated by trademark law, but the expressive element of such speech has been sheltered from unconstitutional harm by Lanham Act defenses. Without them, the Amateur Sports Act prohibits a substantial amount of noncommercial speech.

Trademark protection has been carefully confined to the realm of commercial speech by two important limitations in the Lanham Act. First, the danger of substantial regulation of noncommercial speech is diminished by denying enforcement of a trademark against uses of words that are not likely “to cause confusion, to cause mistake, or to deceive.” See 15 U. S. C. § 1066. Confusion occurs when consumers make an incorrect mental association between the involved commercial products or their producers. See E. Vandenburgh, Trademark Law and Procedure § 5.20, p. 139 (2d ed. 1968). In contrast, § 110(a)(4) regulates even nonconfusing uses of “Olympic.” For example, it may be that while SFAA’s use of the word “Olympic” would draw attention to certain similarities between the “Gay Olympic Games” and the “Olympic Games,” its use might nevertheless not confuse consumers. Because § 110 does not incorporate the requirement that a defendant’s use of the word be confusing to consumers, it regulates an extraordinary range of noncommercial speech.25

*565The fair-use defense also prevents the award of a trademark from regulating a substantial amount of noncommercial speech. See 15 U. S. C. § 1115(b)(4). The Lanham Act allows “the use of the name, term, or device . . . which is descriptive of and used fairly and in good faith only to describe to users the goods or services of such party.” Ibid.26 Again, a wide array of noncommercial speech may be characterized as merely descriptive of the goods or services of a party, and thus not intended to propose a commercial transaction. For example, the SFAA’s description of its community services appears to be regulated by § 110, although the main purpose of such speech may be to educate the public about the social and political views of the SFAA. Congress’ failure to incorporate this important defense in § 110(a)(4) confers an unprecedented right on the USOC. See Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 200-201 (1985) (noting that fair-use doctrine assists in preventing the “unprecedented” creation of “an exclusive right to use language that is descriptive of a product”).27

*566In sum, while the USOC’s trademark of “Olympic” allows the USOC to regulate use of the word in the “strictly business” context, the USOC’s authority under § 110(a)(4) to regulate nonconfusing and good-faith descriptive uses of the word “Olympic” grants the USOC discretion to prohibit a substantial amount of noncommercial speech. Section 110(a) (4) is therefore substantially overbroad. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 959 (1984); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980).

2

A key Lanham Act requirement that limits the impact of trademarks on noncommercial speech is the rule that a trademark violation occurs only when an offending trademark is applied to commercial goods and services. See 15 U. S. C. §§ 1066 and 1127. The Amateur Sports Act is not similarly qualified. Section 110(a)(4) “allows the USOC to prohibit the use of ‘Olympic’ for promotion of theatrical and athletic events,”28 even if such uses “go beyond the ‘strictly business’ *567context.” Ante, at 535; see also ante, at 540 (statute extends to promotional uses “even if the promotion is not to induce the sale of goods”).29 This provision necessarily regulates only noncommercial speech, since every possible commercial use of the word “Olympic” is regulated by preceding sections of the statute.30

While the USOC has unquestioned authority to enforce its “Olympic” trademark against the SFAA, § 110(a)(4) gives it additional authority to regulate a substantial amount of noncommercial speech that serves to promote social and political ideas. The SFAA sponsors a number of nonprofit-making theatrical and athletic events, including concerts, film screenings, and plays.31 These public events are aimed at educating the public about society’s alleged discrimination based on *568sexual orientation, age, sex, and nationality. App. 93-99. In conjunction with these events, the SFAA distributes literature describing the meaning of the Gay Olympic Games. References to “Olympic” in this literature were deleted in response to the injunction, because of § 110’s application to the promotion of athletic and theatrical events. Id., at 88-89, 94, 97.

3

Thus, contrary to the belief of the Court, § 110 may prohibit a substantial amount of noncommercial speech, and is therefore unconstitutionally overbroad. Schaumburg v. Citizens for a Better Environment, supra, at 632. This over-breadth is particularly significant in light of the unfettered discretion the Act affords to the USOC to prohibit other entities from using the word “Olympic.” Given the large number of such users,32 this broad discretion creates the potential for significant suppression of protected speech. “[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v. Birmingham, 394 U. S. 147, 150-151 (1969). See also Niemtko v. Maryland, 340 U. S. 268, 272 (1951). “Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.” Thornhill v. Alabama, 310 U. S. 88, 97 (1940). This broad discretion, with its potential for abuse, also renders § 110 unconstitutionally overbroad on its face.

B

The Court concedes that “some” uses of “Olympic” prohibited under § 110 may involve expressive speech. Ante, at *569535. But it contends that “[b]y prohibiting the use of one word for particular purposes, neither Congress nor the USOC has prohibited the SFAA from conveying its message. .. . Section 110 restricts only the manner in which the SFAA may convey its message.” Ante, at 536 (emphasis added). Section 110(a)(4) cannot be regarded as a mere time, place, and manner statute, however. By preventing the use of the word “Olympic,” the statute violates the First Amendment by prohibiting dissemination of a message for which there is no adequate translation.

In Cohen v. California, 403 U. S. 15 (1971), we rejected the very notion advanced today by the Court when considering the censorship of a single four-letter expletive:

“[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able . . . to discern little social benefit that might result from running the risk of opening the door to such grave results.” Id., at 26.

The Amateur Sports Act gives a single entity exclusive control over a wide range of uses of a word with a deep history in the English language and Western culture. Here, the SFAA intended, by use of the word “Olympic,” to promote a realistic image of homosexual men and women that would help them move into the mainstream of their communities. As Judge Kozinski observed in dissent in the Court of Appeals, just as a jacket reading “I Strongly Resent the Draft” would not have conveyed Cohen’s message, so a title such as “The Best and Most Accomplished Amateur Gay Athletes Competition” would not serve as an adequate translation of petitioners’ message. 789 F. 2d 1319, 1321 (CA9 1986). Indeed, because individual words carry “a life and ■ force of their own,” translations never fully capture the sense *570of the original.33 The First Amendment protects more than the right to a mere translation. By prohibiting use of the word “Olympic,” the USOC substantially infringes upon the SFAA’s right to communicate ideas.

C

The Amateur Sports Act also violates the First Amendment because it restricts speech in a way that is not content neutral. A wide variety of groups apparently wish to express particular sociopolitical messages through the use of the word “Olympic,” but the Amateur Sports Act singles out certain of the groups for favorable treatment. As the Court observes, ante, at 542-543, n. 22, Congress encouraged the USOC to allow the use of “Olympic” in athletic competitions held for youth (“Junior Olympics” and “Explorer Olympics”) and handicapped persons (“Special Olympics”), 36 U. S. C. §374(13), while leaving to the USOC’s unfettered discretion the question whether other groups may use it. See, e. g., USOC v. Golden Age Olympics, Inc., Opposition No. 62,426 (Patents and Trademarks Comm’n, June 4, 1981) (reprinted in App. 383) (denial of use of “Olympic” to senior citizens group); USOC v. International Federation of Body Builders, 219 USPQ 353 (DC 1982) (denial of use to organization promoting bodybuilding).

The statute thus encourages the USOC to endorse particular noncommercial messages, while prohibiting others. Such *571a scheme is unacceptable under the First Amendment.34 “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U. S. 92, 95 (1972). See also Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984) (holding that Government determination of publishability of photographs based on whether message is “newsworthy or educational” constitutes content-based discrimination in violation of First Amendment).

D

Even if § 110(a)(4) may fairly be characterized as a statute that directly regulates only commercial speech, its incidental restrictions on First Amendment freedoms are greater than necessary to further a substantial Government interest. The sole Government interest proffered for giving the USOC sweeping powers over the use of “Olympic” is the desire to provide a financial subsidy to the USOC. Brief for Respondents 24. At minimum, it is necessary to consider whether the USOC’s interest in use of the word “Olympic” could not adequately be protected by rights coextensive with those in the Lanham Act, or by some other restriction on use of the word.

In the absence of § 110(a)(4), the USOC would have authority under the Lanham Act to enforce its “Olympic” trademark against commercial uses of the word that might cause *572consumer confusion and a loss of the mark’s distinctiveness.35 There is no evidence in the record that this authority is insufficient to protect the USOC from economic harm. The record and the legislative history are barren of proof or conclusion that noncommercial, nonconfusing, and nontrademark use of “Olympic” in any way dilutes or weakens the USOC’s trademark. See Stop The Olympic Prison v. United States Olympic Committee, 489 F. Supp. 1112, 1123 (SDNY 1980) (dismissing USOC’s dilution claim because no actual proof of such injury). No explanation is offered, for instance, as to how the use of “Olympic” in theatrical events in conjunction with a disclaimer “not associated with [the USOC]” harms the economic force of the trademark. See Brief for Petitioners 12. The Court contends that § 110 may prohibit uses of “Olympic” because it protects an “image carefully cultivated by the USOC.” Ante, at 541. Again, there is no proof in the record that the Lanham Act inadequately protects the USOC’s commercial interest in its image or that the SFAA has harmed the USOC’s image by its speech.36

*573Language, even in a commercial context, properly belongs to the public, unless the Government’s asserted interest is substantial, and unless the limitation imposed is no more extensive than necessary to serve that interest. See ante, at 537, n. 16; see also Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S., at 215, n. 21 (Stevens, J., dissenting), citing Otto Roth & Co. v. Universal Foods Corp., 640 F. 2d 1317, 1320 (CCPA 1981) (recognizing importance of “free use of the language” in commercial speech context).37 The Lanham Act is carefully crafted to prevent commercial monopolization of language that otherwise belongs in the public domain. See Park ’N Fly, Inc., supra, at 200-201.38 The USOC demonstrates no need for additional protection. In my view, the SFAA therefore is entitled to use the word “Olympic” in a nonconfusing and nonmisleading manner in the noncommercial promotion of a theatrical or athletic event, absent proof of resultant harm to the USOC.

I dissent.

The Court argues that the USOC’s function of coordinating private athletic organizations is not one “traditionally the exclusive prerogative” of government, Jackson v. Metropolitan Edison Co., 419 U. S., at 353. See ante, at 544. Even if the coordination function were the only function delegated to the USOC, which it is not (see discussion of representation function, text this page and infra, at 550-553), the Court’s argument would *550not be dispositive. Although the Court has in the past implied that a finding of governmental action likely follows when a private party performs a function that is traditionally the exclusive prerogative of government, e. g., Jackson, supra, at 352-353, the Court has never expressly limited the definition of government function to such circumstances. Such a limitation would be most imprudent, for it would freeze into law a static conception of government, and our judicial theory of government action would cease to resemble contemporary experience. This case illustrates the point. As discussed, infra, at 554-556, Congress reshaped the USOC in 1978 in part to fulfill a role — that of exclusive national coordinator for all amateur athletics related to international competition — which no private party had ever filled.

See IOC Rule 24(B) (“NOCs [National Olympic Committees] shall be the sole authorities responsible for the representation of their respective countries at the Olympic Games as well as at other events held under the patronage of the IOC”), reprinted in International Olympic Committee, Olympic Charter 16 (1985) (emphasis added).

The President’s Address is reprinted in 1 Public Papers of the Presidents, Jimmy Carter 1980-1981, p. 196 (1981) (Public Papers), and also in 126 Cong. Rec. 380 (1980).

See id., at 562-580. The comments of Representative Ritter during the debate are illuminating: “Moving or boycotting the Olympics is a strong step in the right direction, but it must be seen by all Americans as part of an overall strategy to deal intelligently with the U. S. S. R.” Id., at 575.

The President explained: “Under Olympic principles — and this is very important — athletes represent their nations. Athletes who are not part of a national team cannot compete in the Olympics. The United States does not wish to be represented in a host country that is invading and subjugating another nation in direct violation of human decency and international law. If legal actions are necessary to enforce the decision not to send a team to Moscow, then I will take those legal actions.” Public Papers 636 (emphasis added).

See Dewar & Scannell, White House Looks at USOC’s Tax Status, Washington Post, Apr. 9, 1980, pp. A1, A14. See also 6 The Olympian 5 (March 1980) (reprinting President Carter’s letter to the USOC, written in his capacity as “Honorary President of the United States Olympic Committee,” in which the President explains the “deeper issues ... at stake” in the USOC’s decision); Paul, Historic decision at Colorado Springs means USA will not participate at Moscow, 6 The Olympian 4 (May/June 1980) (hereafter Historic decision) (describing meetings of USOC officials with “Cabinet members and military leaders” to discuss question of United States participation in 1980 Olympic Games).

The Resolution adopted by the USOC House of Delegates on April 12, 1980, stated in part: “Resolved, that since the President of the United States has advised the United States Olympic Committee that in light of international events the national security of the country is threatened, the USOC has decided not to send a team to the 1980 Summer Games in Moscow.” 6 The Olympian 6 (May/June 1980). See also Historic decision 4 (quoting USOC President Kane’s statment “[o]f course, the USOC will ac*553eept any decision the President makes in view of his analysis of what is best for the country”).

The national political ramifications of the USOC’s decisions also were evident in 1968, when the USOC suspended American medalists Tommie Smith and John Carlos from the United States Olympic Team. The athletes had called attention to racial troubles in America by raising black-gloved fists during the medal ceremony. D. Chester, The Olympic Games Handbook 177 (1975).

The international political impact of the Games is an inescapable fact of the modern era. For example, Jesse Owens’ dramatic performance in the 1936 Olympic Games was widely perceived as a rebuke to Hitler and Nazism. Id., at 90-94. The labeling of the 1960 Taiwanese team as representative of “Formosa” rather than of China prompted one member to march in protest. Id., at 142. And the tragic, politically motivated attack on the Israeli Olympic Team in 1972, in which 11 Israeli athletes, 5 Arabs, and 1 German policeman were killed, forever dispelled any illusion that the Olympics could exist apart from the violent vicissitudes of international politics. Id., at 175. As Avery Brundage recognized in 1972, “[t]he greater and more important the Olympic Games become, the more they are open to commercial, political, and . . . criminal pressure.” Ibid.

The Commission “gave special attention to an examination of the U. S. Olympic Committee (USOC),” and found it “to be a maddening complex of organizations . . . unwieldy in its make-up and structure.” 1 Final Report 17. The Commission also found that the ÜSOC “was not [originally] conceived to fill the role of national coordinator of amateur sports. It was simply, by virtue of its name, membership and financial ability, drawn into the vacuum created by the unmet needs in U. S. amateur sports.” Ibid. The Commission’s Final Report concluded: “It goes without saying that the .role of Congress will be crucial. The creation of a central sports organization . . . and other recommendations will require Congressional approval.” Id., at 130 (emphasis added).

See H. R. Rep. No. 95-1627, pp. 9-10 (1978) (summarizing the “enlarge[d]. . . purposes and powers of the USOC [that] permit it to carry out its expanded role”).

These attributes would also distinguish the USOC from most of the “69 other federally created private corporations such as the American Legion, Big Brothers —Big Sisters of America, Daughters of the American Revolu*556tion, Veterans of Foreign Wars of the United States,” ante, at 543, n. 23, whose presumed status as private actors is not threatened by a finding of Government action here.

The Court fails to mention Burton v. Wilmington Parking Authority, a case on which petitioner heavily relies. In each of the decisions principally relied on today, the Court thought it important to discuss and distinguish Burton. See Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 175 (1972); Jackson v. Metropolitan Edison Co., 419 U. S. 345, 357-358 (1974); Rendell-Baker v. Kohn, 457 U. S. 830, 842-843 (1982); Blum v. Yaretsky, 457 U. S. 991, 1010-1011 (1982).

The Court observed in Burton that the relationship between the public authority and the restaurant “eonfer[red] on each an incidental variety of mutual benefits.” 365 U. S., at 724. For example, the location of both parking and dining services in one building could well generate additional demand for each service. Ibid. In addition, any improvements in the restaurant’s leasehold would not lead to increased taxes since the fee was held by a tax-exempt agency. Ibid.

In Burton, the Court also found significant evidence that would link the two actors in the public’s eye. There was “the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service,” ibid., and the fact that “the Authority located at appropriate places [on the facility] official signs indicating the public character of the building, and flew from mastheads on the roof both the state and national flags,” id., at 720. This evident interdependence created public perceptions of “grave injustice” that the Court could not ignore. Id., at 724.

In Burton, the Court could not “ignorfe], especially in view of [the restaurant’s] affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.” Ibid.

See also United States Olympic Committee v. Intelicense Corp., 737 F. 2d 263, 264 (CA2) (Section 110 intended to enable USOC “to safeguard *559the USOC’s ability to raise the financial resources that are a critical component of America’s capacity to send world class amateur athletes into international competition without the massive government subsidies enjoyed by competitors from other nations”), cert. denied, 469 U. S. 982 (1984); Stop The Olympic Prison v. United States Olympic Committee, 489 F. Supp. 1112, 1120 (SDNY 1980) (footnote omitted) (“[SJection [110], read as a whole, evidences a legislative intent to establish strong protection for the Olympic symbols, in part to ensure the market value of licenses for their use. Recent experience has shown such licensing to be a substantial inducement for contributions from a wide variety of commercial corporations, and the drafters of subsection (b) appear to have had this clearly in mind”).

Because both the Court of Appeals and the District Court found no Government action, neither evaluated petitioners’ evidence regarding the USOC’s policy of selective enforcement. 781 P. 2d 733, 736-737 (CA9 1986); App. 271. Although the Court recognizes this, ante, at 542, n. 22, it nevertheless proceeds to offer its view that petitioners’ “claim of discriminatory enforcement is far from compelling.” Ibid. At this stage of the proceedings, however, the proper forum for any such evaluation is the District Court.

Section 110 of the Amateur Sports Act, 36 U. S. C. § 380, provides in part:

“Without the consent of the [USOC], any person who uses for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition—
“(3) any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization by, the International Olympic Committee or the [USOC]; or
*561“(4) the words ‘Olympic’, ‘Olympiad’, ‘Citius Altius Fortius’, or any combination or simulation thereof tending to cause confusion, to cause mistake, to deceive, or to falsely suggest a connection with the [USOC] or any Olympic activity;
“shall be subject to suit in a civil action by the [USOC] for the remedies provided in the Act of July 5, 1946 (60 Stat. 427; popularly known as the Trademark Act of 1946 [Lanham Act, 15 U. S. C. § 1051 et seg.])” (emphases added).

In the Court’s view, § 110(a)(4) does not necessarily extend to purely expressive speech. Ante, at 536, and n. 14.

The legislative history of the Act is consistent with its plain language and indicates that Congress granted word-use authority beyond the power to enforce a trademark. Congress’ purpose was to give the USOC authority “to protect certain symbols, emblems, trademarks, tradenames and words by civil action.” H. R. Rep. No. 95-1627, p. 10 (1978) (emphasis added). Significantly, throughout the House Report, Congress refers to the USOC's authority over the use of “Olympic” as a matter separate from the USOC’s authority to enforce its trademarks. See, e. g., id., at 6, 7, 10, 15, 37-38. Nowhere in the legislative history is there any hint that Congress equated the USOC’s word-use authority over “Olympic” with its trademark power.

In interpreting the Amateur Sports Act, the Court selectively incorporates sections of the Lanham Act. Although the Court refuses to incorporate 15 U. S. C. § 1066 (requirement of consumer confusion) and § 1115 (statutory defenses), it does appear to incorporate § 1127. Ante, at 531. This latter section limits the scope of trademark protection to a word “used *563by a manufacturer or merchant to identify and distinguish his goods, including a unique product, from those manufactured or sold by others.” 15 U. S. C. § 1127 (1982 ed., Supp. III). The Court does not explain, however, the inconsistency between the definition of trademark protection in § 1127 (which limits protection to commercial uses) and the scope of the protection that § 110(a)(4) grants the USOC (including the noncommercial promotion of athletic and theatrical events).

As the District Court recognized:

“You’re saying something that I have trouble with. You’re talking Trademark Act and trademark law, trademark policies and philosophies of this country. But we have a unique situation here which takes it out of the typical trademark-type of litigation. [Section 110 of the Amateur Sports Act] imposes civil liability . . . upon any person who uses [the word “Olympic”] without U. S. O. C. consent to promote any athletic performance or competition. . . .
“. . . The plaintiffs here are seeking to enforce a law. . . which creates a unique and different situation . . . .” App. 265-266.

See Friedman v. Rogers, 440 U. S. 1, 11 (1979) (trademark protections only extend to “strictly business” matters and involve “a form of commercial speech and nothing more”). In no trademark case that the Court has considered have we permitted trademark protection to ban a substantial amount of noncommercial speech. See, e. g., Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 201 (1985) (Lanham Act provisions prevent “commercial monopolization” of descriptive language in the public domain).

The SFAA engages in political advocacy and charitable solicitation, activities that are protected by the First Amendment. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980) (charitable solicitation by an organization committed to political advocacy “involve[s] a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that *564are within the protection of the First Amendment”). It is chartered as a nonprofit, educational organization whose purpose is to inform the general public about the “gay movement” and “to diminish the ageist, sexist and racist divisiveness existing in all communities regardless of sexual orientation.” App. 93, 102. The SFAA solicited charitable donations and distributed T-shirts, buttons, and posters using the word “Olympic.”

In its complaint, the USOC included a cause of action under § 14330 of the California Business and Professional Code (1987), which protects trademark holders against uses which dilute the value of their trademark. App. 7-14. The USOC has not explained, however, why the remedies provided by the California dilution statute are insufficient.

It is worth noting that, although some state dilution statutes do not require proof of actual confusion, they do impose other limitations that are not imposed by § 110. “The dilution doctrine cannot and should not be carried to the extreme of forbidding use of a trademark on any and all prod*565ucts and services, however remote from the owner’s usage.” 2 J. McCarthy, Trademarks and Unfair Competition § 24:16, p. 229 (2d ed. 1984); see also 1 J. Gilson, Trademark Protection and Practice § 5.05[9], p. 5-42 (1986). Only “strong” trademarks are protected by dilution statutes, and the plaintiff’s trademark must not previously have been diluted by others. 2 McCarthy, supra, § 24:14, p. 224; E. Vandenburgh, Trademark Law and Procedure § 5.20, p. 150 (2d ed. 1968). It is generally necessary to show similarity between trademarks and a “likelihood” of confusion. See 1 Gilson, supra, § 5.05[9], p. 5-42. Moreover, state dilution statutes do not generally apply to descriptive, nontrademark uses of words.

It is important to note that even after a trademark has acquired secondary meaning, it may be used in a good-faith descriptive manner under the Lanham Act. See 1 McCarthy, supra, § 11:16, p. 475.

One commentator has described the First Amendment significance of this Lanham Act defense with respect to the regulation of commercial speech:

“Virginia Pharmacy[, 425 U. S. 748 (1976),] and the underlying policies in favor of free commercial speech are closely parallel to those which apply to the branch of trademark law dealing with descriptive words and *566phrases. The same or very similar policies have been followed for more than a half century by courts and legislatures applying the rule of trademark law that descriptive words and terms cannot be monopolized as trademarks. . . . Without such availability, fair and open competition might be impaired, the available vocabulary of descriptive words would be reduced, advertisers could not freely describe their products, and the public might be deprived of information necessary to make purchase decisions. ... If the court finds . . . that defendant is using the term in a purely descriptive manner, it presumably can support its holding by reliance on the Virginia Pharmacy doctrine and policies.” 1 Gilson, supra, § 5.09[5], pp. 5-88 to 5-89 (footnotes omitted).

Noncommercial promotion may include critical reviews of theatrical performances, anticipatory notices and descriptions in the media of athletic competitions, and distribution of educational literature describing the sociopolitical reasons for holding the public events. See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U. S. 557, 580 (1980) (Stevens, J., concurring in judgment) (promotional advertising encompasses more than commercial speech). For example, in response to the injunction, the SFAA excised the use of “Olympic” from its promotional *567and educational literature, cautioned its phone operators to refrain from using the term, and advised media representatives not to use this word in conjunction with articles about the cultural and athletic events sponsored by the SFAA. App. 88-92, 94-115.

Before concluding that the incidental regulation of some expressive speech is justified, ante, at 541, the Court states that it is not clear that § 110 restricts purely expressive uses of “Olympic,” ante, at 536. Such vagueness suggests that the Amateur Sports Act dangerously chills even purely expressive speech. In the instant case, a local newspaper organization excised “Olympic” from an edition in response to the imposed injunction. App. 89. See also n. 28, supra.

Every commercial use of “Olympic” is regulated under passages of the statute which precede this part of § 110. The USOC is authorized to regulate use of the word as a trademark under § 110(a)(3). All remaining commercial uses of “Olympic” not regulated by that subsection are governed by § 110(a)(4)’s authorization of the USOC to control the use of “Olympic” by “any person ... for the purpose of trade” or “to induce the sale of any goods or services.” Consistent with the Court’s interpretation, this authorization gives the USOC the right to Lanham Act remedies, even if the SFAA’s use of “Olympic” is noncommercial, nonconfusing, and merely descriptive.

The SFAA’s amateur athletic events include competition by age-groups with mixed genders in some sports to promote a climate of competition that emphasizes personal improvement rather than winning, and promotes goodwill toward all ages, sexes, and races. App. 98.

See Brief for Respondents 40-41. In Los Angeles and Manhattan alone, there are over 200 enterprises and organizations listed in the telephone directories whose names start with the word “Olympic.” 789 F. 2d 1319, 1323 (CA9 1986) (Kozinski, X, dissenting).

James Boyd White has written:

‘When we look at particular words, it is not their translation into statements of equivalence that we should seek but an understanding of the possibilities they represent for making and changing the world. . . . Such words do not operate in ordinary speech as restatable concepts but as words with a life and force of their own. They cannot be replaced with definitions, as though they were parts of a closed system, for they constitute unique resources, of mixed fact and value, and their translation into other terms would destroy their nature. Their meaning resides not in their reducibility to other terms but in their irreducibility. . . . They operate indeed in part as gestures, with a meaning that cannot be restated.” J. White, When Words Lose Their Meaning 11 (1984).

Due to the particular meaning of “Olympic,” the suppression of the use of the word has its harshest impact on those groups that may benefit most from its use, such as those with debilitating birth defects, see USOC v. March of Dimes Birth Defects Foundation, No. CA 83-539 (Colo., July 1, 1983), and the aged, see USOC v. Golden Age Olympics, Inc., Opposition No. 62,426. Cf. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 763 (1976).

In this litigation, the USOC filed causes of action under the Lanham Act, the Amateur Sports Act, and the California dilution statute. App. 7-14.

Nor is there any evidence that SFAA’s expressive speech caused economic or reputational harm to the USOC’s image. In Spence v. Washington, 418 U. S. 405 (1974), a State asserted a similar interest in the integrity of America’s flag as “ ‘an unalloyed symbol of our country,’ ” and contended that there is a substantial Government interest in “preserving the flag as ‘an important symbol of nationhood and unity.’” Id., at 421. The Court considered whether a State could withdraw “a unique national symbol from the roster of materials that may be used as a background for communications.” Id., at 423 (Rehnquist, J., dissenting). It reviewed a state law that limited the use of the American flag and forbade the public exhibition of a flag that was distorted or marked. Id., at 407, 422. The appellant was convicted for violating the statute by displaying the flag upside down in the window of his apartment with a peace symbol attached to it. Eight Members of the Court held that the statute was unconstitutional as applied to appellant’s activity. “There was no risk that appellant’s acts would mislead viewers into assuming that the Government endorsed his view*573point,” and “his message was direct, likely to be understood, and within the contours of the First Amendment.” Id., at 414-415. The Court concluded that since the state interest was not “significantly impaired,” the conviction violated the First Amendment. Id., at 415. Similarly, in this case, the SFAA’s primary purpose was to convey a political message that is nonmisleading and direct. This message, like the symbolic speech in Spence, is protected by the First Amendment.

See also Bada Co. v. Montgomery Ward & Co., 426 F. 2d 8, 11 (CA9) (“[0]ne competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods”), cert. denied, 400 U. S. 916 (1970).

The Lanham Act “provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.” Park ’N Fly, Inc., 469 U. S., at 198.