dissenting:
To fully understand the nature of the property in dispute here, it is necessary to scrutinize more closely the history of the Venetian Casino construction and, more specifically and significantly, to compare the two agreements entered into by the Venetian, first with Clark County and then with the State of Nevada.
The undisputed facts are as follows: Venetian owns a large block of property in Las Vegas. This property has always been in private hands. In 1997, Venetian obtained approval to demolish the hotel formerly sitting on the property and to construct a new hotel. The new hotel’s frontage and main entrance face Las Vegas Boulevard.
In February 1997, Venetian entered into negotiations with Clark County and eventually reached a pre-development agreement. The 1997 Agreement contemplated that Venetian would construct certain improvements to alleviate the new hotel’s anticipated impact on traffic, and would convey property rights to the County or State if “required to construct the IMPROVEMENTS,” including any “public rights-of-way” that might be “needed for [those] systems.” Venetian agreed that “[a]ny conveyance of land” to “the COUNTY or to the State of Nevada, for public use of sidewalks ... will be for facilitating the perpetual flow of pedestrian traffic, utility easements, public facility easements, and for maintenance purposes of said sidewalks, walkways, and pedestrian passageways, without restrictions.” To identify the specific measures that would be required to address “pedestrian safety needs as they relate to public walkways,” Venetian agreed to conduct a traffic impact evaluation study for the County’s approval and to abide by the Study’s recommendations.
*951During a public hearing on the Agreement, several County Commissioners expressed concern that, under this Agreement, the public might not have free speech rights on the sidewalk in front of the Venetian. The response these concerns received was ambiguous. Despite these unresolved concerns about the reach of the First Amendment to the Venetian’s property, the County decided not to table the sidewalk issue in order to obtain additional legal guidance and instead voted to approve the Agreement and continue with the traffic impact study.
The Study recommended widening Las Vegas Boulevard by one traffic lane along the Venetian frontage. The additional lane would replace an existing public sidewalk, but would also exhaust the State of Nevada right-of-way on Las Vegas Boulevard, leaving no remaining State right-of-way on which to construct a new sidewalk. Any new sidewalk therefore would have to be constructed on Venetian’s private property. The final County-approved Traffic Study did not require Venetian to convey any property rights to the State (including any public right-of-way) for a new public sidewalk.
Because Las Vegas Boulevard sits on a State— not County— right-of-way, Venetian began negotiations with the Nevada Department of Transportation to address the issue of pedestrian passage along the Venetian frontage on Las Vegas Boulevard. The discussions between Venetian and NDOT produced the 1999 Agreement at issue in this case.
The language regarding the sidewalk in the 1999 Agreement stands in marked contrast to that in the 1997 Agreement. Instead of referring to “public property rights,” the Agreement refers to the sidewalk as private six times. In fact, every time the sidewalk is referred to in the contract, it is designated a “private sidewalk.” The agreement goes on to distinguish the “private sidewalk” from the “public sidewalks on either side of [Venetian’s] property.”
Furthermore, it is stated that “the Department [of Transportation] is not taking any private property interest with this document. The use being permitted is at the request of and for the benefit of the [Venetian].... ” The final clause of the Agreement explicitly states: “The [Venetian] retains full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment to the United States Constitution.”
A comparison of these two agreements speaks volumes about the nature of the property in dispute here. It is clear that the County could have (and should have) demanded a full conveyance of the sidewalk. This was in fact part of the earlier 1997 Agreement, but the County and State chose not to enforce that provision in the final agreement with the Venetian. It is significant that, even though the language in the 1997 Agreement which created a public right-of-way provoked concern over the First Amendment, the County and State went ahead and weakened the language in the 1999 Agreement even further. Both sides of this agreement were sophisticated parties who understood the benefits of the bargain. During the course of the negotiations, the County and State chose not to hold up the building of the casino, so as to gain a public right-of-way. They made a calculated decision to change the language of the contract, and we should read the changed language as meaningful. The County and State should not be given by this court property rights that it clearly bargained away. Because I believe the majority does exactly that, I respectfully dissent.
“Before deciding whether defendant can be enjoined from prohibiting speech on its *952premises, the court must undertake a two-step inquiry. First, the court must determine whether this defendant, an ostensibly private party, may be held to constitutional standards when it attempts to regulate activity on its premises. If so, the court must then characterize the forum at issue, thereby setting the constitutional standards by which defendant’s regulations are to be judged.” Citizens to End Animal Suffering and Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F.Supp. 65, 69 (D.Mass.1990) (citations omitted). At issue here is the first step of this inquiry: whether Venetian, a private corporation, may be held to the standards of the First Amendment when it regulates activity on its sidewalk.
Here, the appropriate test for determining whether a private party’s actions are fairly attributable to the State is whether the “private actor has assumed a traditionally public function.” Id. at 69 (citing Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). The Supreme Court has cautioned that this determination of whether a private party may be subject to constitutional standards is “necessarily fact-bound.” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) and Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). With all due respect to the majority, I believe that a comprehensive analysis of all the facts here leads to exactly the opposite conclusion that it reached: the Venetian is merely a private actor, acting on private land.
The “relevant question” under the public function test “is not simply whether a private group is serving a public function,” but rather “whether the function performed has been traditionally the exclusive prerogative of the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)(internal quotation marks omitted)(emphasis added). Here, the Venetian is regulating access to and activity on private property, including a private sidewalk, a “traditionally private function.” Tynecki v. Tufts Univ. Sch. of Dental Medicine, 875 F.Supp. 26, 33 (D.Mass.1994). The only exception to the general rule that private parties can regulate private functions without triggering First Amendment restrictions, recognized by the Supreme Court in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), is inapplicable here. In Marsh, the company town performed all municipal functions and therefore was found to be a state actor, as “the [corporate] town ... does not function differently from any other town.” 326 U.S. at 508, 66 S.Ct. 276.
In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), and Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Supreme Court considered the application of the Marsh exception to sidewalks within private shopping centers. The Court counseled against stretching the “public function” idea to encompass any private area open to the public and bearing a resemblance to a public space. See Lloyd, 407 U.S. at 570, 92 S.Ct. 2219 (“[T]he Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens must be respected and protected.”) In Lloyd, the Supreme Court made clear that the simple fact of opening up a private space to the public and a functional similarity to “facilities customarily provided by municipalities” do not automatically subject that private property owner to the restrictions of the First Amendment. Id. at 569, 92 S.Ct. 2219. “The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.... Nor does property lose its private character merely because the public is generally in*953vited to use it for designated purposes.” Id. Instead, the holding of Marsh should be limited to the company town, an “economic anomaly of the past,” or at least to situations in which a private property owner assumes the “full spectrum of municipal powers” in a manner similar to the company town. Id. at 561, 569, 92 S.Ct. 2219.
The majority attempts to maneuver around the Supreme Court’s limitation of Marsh and also its clear hesitation to expand the “public function” idea further. They do so by distinguishing the pedestrian “promenades” inside these private enclosed shopping centers as intended solely for access to the center itself, whereas the Venetian’s sidewalk is an “integral part of the city’s ... transportation grid.” However, this distinction alone does not hold up under scrutiny, as it mimics the functional similarity argument rejected in Lloyd. The mere fact that the Venetian’s sidewalk is open to the public generally and therefore performs the same function as a public sidewalk is not sufficient without more to subject the property to constitutional standards. There must be a kind of all-encompassing “assumption or exercise of municipal functions or power” comparable to that in Marsh. Lloyd, 407 U.S. at 569, 92 S.Ct. 2219.
Therefore, the only possible distinction that can be drawn between the private sidewalks in Lloyd and Hudgens and the Venetian’s sidewalk at issue here is a potential dedication of the sidewalk to public use by the Venetian. I agree with the majority that, if the Venetian had truly given the public an explicit right to its property in the 1999 Agreement, then this sidewalk would indeed fall within the ambit of the First Amendment. This is in essence a matter of contract interpretation, and I believe that close scrutiny of the circumstances that led to the contract and the plain language of the contract itself, as well as the history of the piece of property at issue and its physical characteristics, will compel an entirely different conclusion than that arrived at by the majority.
A. Historic Use for Public Expression
The majority only acknowledges in passing the most crucial fact in determining the historical use of this property: the sidewalk was rerouted onto private property. Never before had the ground upon which the sidewalk now sits been used by the public; never before had a sidewalk been placed there. It is, was, and always has been privately-owned property. However, the former sidewalk is now replaced by a highway; it exists no more. The majority glosses over this crucial fact, stating that “[it] is the historical use of the sidewalk adjacent to Las Vegas Boulevard that is significant, not the piece of land on which the replacement sidewalk had to be located.” This statement is simply wrong, as the fact that a public sidewalk existed at one time just a few feet away does not convert private property into public property. Any First Amendment analysis as to the requirement of state action must start with the piece of property at issue in the case, and this starting point can not be glossed over by importing in the history of other pieces of property.
Therefore, because this sidewalk is on property that is and always has been private, the most compelling cases which hold private property subject to First Amendment protection due to a dedication are inapplicable here. They either involve property that had previously been public or still retained an underlying public character. See Freedom from Religion Foundation v. City of Marshfield, 203 F.3d 487, 490 (7th Cir.2000) (city converted a portion of a public park into private property, while reserving a covenant running with the land that restricts the use of the parcel *954to public purposes); Citizens to End Animal Suffering, 745 F.Supp. at 71 n. 10 (Faneuil Hall is owned by the City of Boston and leased to private actors with an express easement reserved to the City). In both cases, the property in dispute had at some point been completely public and was converted into a private property interest with an interest retained by the public. Here, that is simply not the case.
Furthermore, the majority maintains that they would have been persuaded that Venetian should not be considered as a state actor, if it “fundamentally altered the sidewalk’s character or its use by the public.” This requirement assumes again that the property in dispute had at some point been public, which it had not. Because the sidewalk is located on property that has always been private, Venetian should not have to do something proactive to signal its private character or else risk falling within the First Amendment. By requiring this of the Venetian, the majority essentially creates a presumption that, if an individual owns private property which looks like it could be public, that person will have to let the public know that its private or else he will be acting as the State.
However, even assuming that alteration or separation of its private sidewalk from the surrounding public sidewalks is required of the Venetian, it has amply demonstrated that the sidewalk at issue is markedly different from the public sidewalks to which it connects. It was designed to fit within the design concept of the Venetian, with pavement patterns and light posts matching those of the exterior plaza area of the hotel. The sidewalk seamlessly matches the Venetian and does not match the continuation of the sidewalk on either side. Therefore, “visual boundaries currently [do] exist that would inform the reasonable but unknowledgeable observer that the [Venetian sidewalk] should be distinguished from the [public sidewalk].” Freedom from Religion Foundation, 203 F.3d at 494.
It bears noting that every case concerning historical use for public expression cited by the majority relates to the level of protection afforded First Amendment rights, after the state action requirement was satisfied. See., e.g., United States v. Kokinda, 497 U.S. 720, 723, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990)(“The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building and lies entirely on Postal Service property.”)(emphasis added); Int’l Society for Krishna Consciousness v. Lee, 505 U.S. 672, 673, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992)(“In this case we consider whether an airport terminal operated by a public authority is a public forum ....”) (emphasis added); Chicago Acorn v. Metropolitan Pier Exposition Auth’y, 150 F.3d 695, 702 (7th Cir.1998) (stating that “[i]f the MPEA were a private entity, it would have a free hand in deciding whom to admit to its property and on what terms.... But it is publicly owned, and so its owner, the MPEA, is subject to the First Amendment.”). They do not address the issue we face today, whether a private actor has given the public a right to use its property, such that the First Amendment applies to that actor as if he was the State. Instead, they address whether or not a piece of publicly-owned property is a public forum.
The majority imports from this misapplied public forum analysis a distinction between non-thoroughfare and thoroughfare sidewalks which has never before been applied to private actors. See Kokinda, 497 U.S. at 727-28, 110 S.Ct. 3115. In fact, Kokinda clearly states that the issue before the Supreme Court was the level of scrutiny to apply to the governmental ac*955tion there, not whether the government was an actor at all: “[t]he Government’s ownership of property does not automatically open that property to the public. It is a long-settled principle that government actions are subject to a lower level of First Amendment scrutiny when the government [is] operating ... as proprietor, to manage its internal operation.” Id. at 725, 110 S.Ct. 3115 (internal quotation marks and citations omitted).
The majority dismisses this distinction in a footnote, stating that “while the sidewalk at issue in Kokinda was government owned, this is not true of all Supreme Court public forum cases.” See footnote 6. However, the majority’s characterization of the issue as one of government ownership alone misconstrues the fundamental requirement for a First Amendment analysis, which is state action. The Supreme Court case cited by the majority in then-footnote, United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 128, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) clearly involved state action, as at issue was a federal statute prohibiting the deposit of unstamped mailings in letterboxes. Therefore, the First Amendment analysis turned on the Postal Service’s enforcement of that statute to all letterboxes. See id. (“What is at issue in this case is solely the constitutionality of an Act of Congress which makes it unlawful for persons to use, without payment of a fee, a letterbox which has been designated an ‘authorized depository’ of the mail by the Postal Service.”) Here, the issue is whether the State has acted at all, an issue clearly resolved in Greenburgh.
Although this distinction might appear to be an issue of semantics, it has important ramifications for the scope of the First Amendment. It is true that the inquiry as to whether or not a private party is acting as the state will often involve similar factors as the inquiry into what level of protection a piece of property receives, such as the dedication of the property by the private individual to public use. However, the reach of the First Amendment is broadened when we incorporate the public forum analysis within the state action inquiry. Our focus shifts away from whether that specific private actor is actually acting as the state (i.e. when performing a public function) to whether that type of property historically has been used as a public forum. This move broadens the scope of who is a state actor for the purposes of the First Amendment because the inquiry becomes more generalized. No longer do we have to focus on that specific actor acting on that specific property. Instead we will ask: “Is this type of property generally used for public purposes?”
Here, the impact of blurring the boundaries becomes apparent, because sidewalks are traditionally public fora. In fact, they are a classical example of the public space. However, that should only matter if they are publicly-owned or publicly-dedicated sidewalks or if the private owner is somehow assuming a public function. If we allow the public forum analysis to creep into the analysis of whether or not the public has a right to a particular piece of property, any private piece of property of a type traditionally owned and operated by the public or which is used in a manner traditionally associated with the public will presumptively satisfy the state action requirement, without any showing at all that the actual private property owners involved acted as the state. This new reading of the First Amendment’s state actor requirement will greatly undermine private property rights, as the majority opinion undercuts the ability of private actors to negotiate and determine the rights that apply to their property, if that piece of property happens to be space traditionally construed as public.
*956B. The Language of the 1999 Agreement
In analyzing whether or not Venetian dedicated the sidewalk to the County or State, a comparison of the language in this contract and the negotiations surrounding it to the contract in Citizens to End Animal Suffering, in which a property right was clearly and explicitly given to the public, exposes the relatively weak argument the appellees present here. In Citizens to End Animal Suffering, the district court enjoined the owners of Faneuil Hall Marketplace, a private corporation, from interfering with the plaintiffs’ freedom of expression, because the Hall was performing a public function. There, as stressed by the court, the “lanes on which plaintiffs wish[ed] to protest are encumbered by an easement for public access.” Citizens to End Animal Suffering, 745 F.Supp. at 70.
That easement is markedly different from the language in dispute in this contract. There, the property was actually owned by the City of Boston and merely leased to the owners of Faneuil Hall Marketplace, Inc. Incorporated in the language of the lease was an express easement, in which the City reserved the right of the public for pedestrian access. The language in that contract was as such: “The City hereby reserves unto itself ... a perpetual, non-exclusive easement, for the benefit of and use by the general public, for reasonable, peaceful, and orderly pedestrian access and passage.” Id. at 71 n. 10.
In Citizens to End Animal Suffering, the relationship of landlord and lessee created an ongoing relationship between the City and the private individuals, and the City needed only to reserve a right that it already had in the property. In the present ease, there is no such relationship; the land on which the sidewalk was erected has always been private. Therefore, the State was not merely holding on to, or reserving, a right that it previously had. It came to the contractual table with no rights in that piece of property, and the Venetian would have had to give over to the State “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v. City of Tigard, 512 U.S. 374, 393, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). But, in the contract with the State, the Venetian gave no dedication or easement for use by the general public as a sidewalk. If we do not demand an even higher showing of express intent in this instance, we should at least require the parties to be as explicit as they were in the reservation contained in Citizens to End Animal Suffering.
However, the majority does not. It reads the language “for the purpose of providing unobstructed access” in the 1999 Agreement as creating an express easement for the public. For additional support of that reading, the majority relies on a clause in the Agreement which states that, if the Venetian removes, alters, or abandons the sidewalk, it must then dedicate the necessary right-of-way to permit the construction of a replacement public sidewalk. The majority also points to the recording of the agreement and the language which binds later parties, as evidence of a servitude.
There are numerous problems with this analysis. A dedication under Nevada law requires a devotion of the land for public purposes “manifested by some clear declaration of that fact.” Shearer v. City of Reno, 36 Nev. 443, 136 P. 705, 707 (1913). This requires a “showing that [the Venetian] clearly and unequivocally intended to devote [that portion of the property] to public use.” Anderson v. Felten, 96 Nev. 537, 612 P.2d 216, 218 (1980). The appellees here are required to demonstrate that the Venetian clearly and obviously intended to dedicate that portion of their property to the State of Nevada. This they cannot do. The majority helps them by *957cobbling together a dedication from various provisions in the contract, while ignoring the great weight of the contractual language demanding the opposite conclusion.
First, the overwhelming majority of the 1999 Agreement’s language indicates that Venetian and the NDOT agreed that the sidewalk would be wholly private. The sidewalk is always referred to as private, and it is distinguished from the public sidewalks that connect to it. The parties’ rights are clearly delineated in the agreement: the Venetian retains “full rights inherent to the ownership of private property,” whereas the NDOT does “not tak[e] any private property interest.”
The majority dismisses these statements as “limited by the terms and conditions set forth elsewhere in the Agreement.” However, the majority’s interpretation of the contract requires a reading that gives some clauses meaning while rendering the others void. Although the Venetian states that it retains full rights, the majority’s interpretation reads this out of the contract. The NDOT states that it has no property interest in the sidewalk, yet the majority gives them an interest anyway. The contract as a whole becomes nonsensical, as one clause is read to trump all the others.
Secondly, and most importantly, there is no language in this contract similar to that in Citizens to End Animal Suffering. Nowhere does the Venetian give an “easement” or a “dedication” for public use as a sidewalk. The only clause that could possibly be interpreted as the transfer of a property interest states in its entirety:
[Venetian] shall construct and maintain on its property along Las Vegas Boulevard South a private sidewalk connecting to public sidewalks on either side of its property. The private sidewalks shall have a minimum width of ten feet and shall satisfy the Americans with Disabilities Act for the purpose of providing unobstructed pedestrian access.
The majority makes much of the fact that Venetian’s counsel conceded to the district court that it could not unreasonably obstruct the flow of pedestrian traffic. However, this is creating the proverbial mountain out of a molehill. By the plain language of that clause, Venetian provides pedestrian access to its sidewalk which is unobstructed. The issue is whether or not that condition placed upon the private sidewalk is sufficient to create a dedication for the public and therefore afford First Amendment rights there. As I have discussed herein, I do not think that, under the case law, this contract language is sufficient to treat the Venetian as a government actor.
Although the majority finds this line of reasoning unpersuasive and insignificant, I read this language as merely a recitation of the Venetian’s obligations under the American Disabilities Act. Under the ADA, any “private entity” operating a “public accommodation” — which encompasses virtually all types of commercial establishments, including a “hotel” — must remove all “architectural barriers” that operate to inhibit access by disabled persons. 42 U.S.C. §§ 12181(7)(A), 12182(b)(2)(A)(iv). The obligation to “remove barriers” includes “[i]nstalling ramps” and “[m]aking curb cuts in sidewalks and entrances.” 28 C.F.R. § 36.304(b)(1), (b)(2). With particular respect to newly constructed public accommodation, moreover, the ADA requires an “unobstructed way of pedestrian passage” to principal areas of the facility from any “exterior approach (including sidewalks, streets, and parking areas).” 28 C.F.R. § 36.403(e)(1). Therefore, this language should be read as indicative of the State’s intention to treat Venetian’s private sidewalk no differently than any other private sidewalk fronting a commercial establishment.
*958Finally, even if this language can be read as something more than compliance with the ADA, it is not a dedication of a right-of-way or an easement. Instead, as Venetian argues, it seems more akin to any restriction placed upon planned construction, such as a requirement to maintain a parking lot adjacent to the sidewalk. Venetian is required by the language of the contract to maintain a “private sidewalk.” As long as it does so, Venetian retains full private property rights in that sidewalk. If it removes the private sidewalk, it must replace it with a dedicated right-of-way.
The majority relies on the clause concerning possible alteration or destruction of the current sidewalk by the Venetian and the subsequent dedication to indicate that a dedication is already in place. A straightforward reading of the contract indicates otherwise. If the State already had a dedication, then the clause would only have to indicate that, if the Venetian interfered with its dedication, it would be violating its obligations under the contract. Instead, the language states that, “should the private sidewalk be removed, altered, or abandoned,” then Venetian would be obligated to “dedicate [the] necessary right-of-way to the Department.” The plain language clearly indicates that a dedication does not currently exist, and it is only in the event that Venetian destroys its private sidewalk that it will then have to give over a dedication.
This reading is buttressed by the lifespan of dedications under Nevada law. “According to the great weight of authority a dedication ... is irrevocable, and the dedicator is forever concluded from exercising any authority or setting up any title to the same.” Shearer, 36 Nev. 443, 136 P. 705, 710. If this clause is a dedication and, as the majority believes, it binds the Venetian’s heirs and successors under the contract, then it should be irrevocable and eternal. The Venetian would be unable to take it away, rendering the clause creating a dedication under certain circumstances (such as destruction or alteration of the private sidewalk by the Venetian) superfluous. A common-sense reading of that clause only gives the NDOT a dedication if certain events occur, and conversely, if these events do not occur, the NDOT does not have a dedication.
It is axiomatic that the First Amendment only applies to state actors and therefore that the Constitution does not provide protection or redress against abridgement of free expression by private individuals or corporations. However, the majority opinion seemingly ignores this fundamental axiom and today applies the First Amendment to a private corporation’s regulation of its own private sidewalk, which was built on a portion of the property that had always been private. To arrive at this curious result, the majority relies on case law which does not address the issue of state action, but rather focuses on whether private land can be a public forum, an issue that we can only reach after finding a state actor. Furthermore, the majority misconstrues the historical nature of the property in question and relies on a misinterpretation of the 1999 Agreement and the negotiation and facts surrounding the entry into that contract. In essence, the majority collapses the past [the public sidewalk on Las Vegas Boulevard] and the future [a contractual provision requiring the Venetian to build a dedicated sidewalk if the Venetian destroys this one] to create the present property right. In doing so, the majority has extended the First Amendment far beyond its intended reach and has undermined the rights of private property owners. For these reasons, I respectfully dissent.