Las Vegas Casinos

On the record before the court, I believe that the appellants' commercial speech fails the first prong of the Central Hudson test. The handbills in this case advertise in-room erotic dancing with suggestive slogans. As such, they appear to solicit offers of illegal prostitution. And if they do not, they certainly create that misleading impression. Accordingly, I would hold that the appellants' commercial speech is unprotected by the First Amendment. Thus, the regulation at issue here is constitutionally permissible.

For these reasons, I concur in the court's judgment.

SHEARING, J., concurs.

ROSE, J., dissenting.

The real property in question consists of two traditional sidewalks abutting Las Vegas Boulevard that are traversed daily by thousands who use the sidewalks as a principal thoroughfare along the city's most famous stretch of casinos, the Las Vegas Strip. By the very location and function of the sidewalks, I think it is impossible not to conclude that they serve as traditional public sidewalks. Similar thoroughfares, whether publicly or privately owned, have been recognized as public forums on which all First Amendment rights must be recognized and honored. Therefore, I disagree with the majority's conclusion that the area in question is not a public forum. But I believe that the Mirage and Treasure Island may have made a sufficient showing that the petitioner's solicitations are merely a front for prostitution, an illegal activity in Las Vegas not entitled to First Amendment protection. The district court, however, expressly declined making a finding on this issue. Therefore, although I conclude that the district court abused its discretion in granting the preliminary injunction on the ground stated, I would remand to the district court for a determination of whether the respondents are nonetheless entitled to a preliminary injunction based on the fact that the solicitations actually advertise illegal activity.