Mirage Las Vegas Hotel

Any misuse of the land or deviation from the intended use of the land is a trespass in Las Vegas for which the owner may seek relief. [FN15] The Restatement addresses the privilege to enter another's property where that property contains a "public highway." The Restatement defines "public highway" to include a sidewalk laid across private property for the use of pedestrians. The Restatement suggests that where sidewalks on private property are intended to facilitate pedestrian travel, activities unrelated to travel exceed the use of such property and subject the trespasser to liability. [FN16]

FN15. See NRS 207.200; Restatement (Second) of Torts § 192 (1981).

FN16. Restatement (Second) of Torts § 192 cmt. d (1981).

We conclude that the easement, by its express language, is limited to pedestrian uses of the sidewalk outside of the Mirage and Treasure Island to travel from point A to point B. The language of the easement does not contemplate use by commercial businesses seeking to advance their own economic gains. The district court did not err in making a preliminary finding that the existence of the easement alone, without more, does not transform private property into a public forum for constitutional scrutiny.

The requirement of a "state actor"

S.O.C./Hillsboro concede that the Constitution does not apply to private conduct; however, they argue that the First Amendment protects the activities of its employees from infringement by the Mirage, a private entity, because the Mirage has functionally assumed the role of the government by excluding their handbillers from a traditional public venue. We cannot agree. The need to apply the "public function" exception to the application of the state action requirement of the First Amendment has not yet been demonstrated, and therefore, Mirage's exclusion of commercial handbillers does not implicate the First Amendment.