with whom Shearing, J., agrees, concurring in the result:
I concur in the majority’s result, albeit for alternate reasons.
I write separately because I believe the appellants’ commercial speech invites a lowered First Amendment scrutiny, and, accordingly, the district court properly enjoined the handbillers’ activities.
The basic question in this matter was convincingly settled in Venetian Casino Resort v. Local Joint Executive Board.1 In Venetian, the defendant unions obtained a permit to picket in a private pedestrian walkway fronting the Venetian Casino Resort. That sidewalk is directly across the street from, and in every relevant respect identical to, the properties at issue in the instant matter. The federal district court concluded that the Venetian property “was previously public, serves as a thoroughfare along a main public road, and serves the needs of the general public. As such, it falls within a very limited exception to the general rule that private property is not subject to the First Amendment.”2 This exception must also apply here.
*417Nevertheless, the speech at issue in Venetian and in the case upon which Venetian primarily relies, Marsh v. Alabama,3 is different in kind from the commercial handbilling here. Unlike union protests or religious proselytizing, commercial speech enjoys limited First Amendment protection.4 “[T]he difference between commercial price and product advertising and ideological communication permits regulation of the former ‘that the First Amendment would not tolerate with respect to the latter.’ ”5
Commercial speech may be suppressed even where, as here, it is conducted in a traditional public forum.6 In determining whether suppression of commercial speech passes First Amendment muster, courts apply “intermediate” scrutiny, analyzing government regulations under the four-part test announced in Central Hudson:7
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
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.
45 F. Supp. 2d 1027 (D. Nev. 1999).
Id. at 1036.
326 U.S. 501, 506 (1946).
See Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557 (1980).
Metromedia Inc. v. San Diego, 453 U.S. 490, 507 (1981) (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 69 n.32 (1976) (plurality opinion)).
See Metromedia; Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
447 U.S. at 566.