Las Vegas Casinos

Second, an overly broad application of the exception to the state action requirement would swallow the rule. We conclude that compelling policy reasons exist in support of a narrow reading of the "state action" requirement. As Professor Tribe explains: By exempting private action from the reach of the Constitution's prohibitions, it stops the Constitution short of preempting individual liberty--of denying to individuals the freedom to make certain choices .... Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution's demands. [FN23]

FN23. L. Wynn, American Constitutional Law, § 18-2, at 1691 (2d ed.1988).

We hold that the district court did not err in making a preliminary finding that by owning and maintaining the particular sidewalks at issue in this case, the Mirage is not automatically performing a public function and therefore cannot be held to the Constitutional requirements of the First Amendment.

Public forum

S.O.C./Hillsboro argue that sidewalks outside the Mirage and Treasure Island, no matter who maintains title, are a public forum subject to a heightened level of protection. We disagree. Privately-owned property does not lose its private nature because the public traverses upon it. In addition, inherent within our conclusion, that the district court did not err in finding that no state action has occurred, is the corollary that the forum is private.