Las Vegas

The majority's conclusion that the private ownership of the sidewalks allows the Mirage and Treasure Island to regulate First Amendment activities on the walkways is unpersuasive. As the United States Supreme Court has articulated: "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." [FN3] Thus, even if the underlying land is private property, the location and purpose of the land will dictate the degree to which the owner can regulate activity on it.

FN3. Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 90 L.Ed. 265 (1946); see also Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.").

The sidewalks at issue here serve as critical commercial arteries along the Las Vegas Strip and function in every other respect as traditional public sidewalks. [FN4] Indeed, the sidewalks serve as major "public passageway [s]" and "thoroughfare[s]" that "facilitate the daily commerce and life of the neighborhood or city"--characteristics which the United States Supreme Court has held are indicative of traditional public sidewalks. [FN5] The Court further instructs that traditional public sidewalks are the "archetype of a traditional public forum." [FN6] " '[For t]ime out of mind' public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum." [FN7] Additionally, it should not be forgotten that the original purpose of the pedestrian easement was to allow the city to widen Las Vegas Boulevard into the public right-of-way typically reserved for sidewalks without depriving the public of such a sidewalk. Accordingly, because of the sidewalks' central location and important commercial function, I believe that they are public forums regardless of private ownership. [FN8]