dissenting:
The real property in question consists of two traditional sidewalks abutting Las Vegas Boulevard that are traversed daily by *418thousands 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.
The diagram below shows the two sidewalks on which the Mirage and Treasure Island granted their “pedestrian easement” to the city.
Diagram 1: The Easement Areas on Las Vegas Boulevard1
[[Image here]]
The sidewalk in front of the Mirage is entirely owned by the Mirage and consists of a cement walkway directly abutting Las Vegas Boulevard. Part of the sidewalk is bordered by the water and volcano attraction located in front of the Mirage. The pedestrian easement includes the length of the sidewalk as it runs parallel to the Strip.
The sidewalk in front of Treasure Island consists of both a publicly owned cement walkway directly abutting Las Vegas Boulevard and an adjacent privately owned planked walkway. The pedestrian easement includes that portion of the planked walkway running parallel to Las Vegas Boulevard. The planked area serves not only as a thoroughfare along the Strip but also as a place from *419which pedestrians can enjoy Treasure Island’s Buccaneer Bay show, which is staged on the large pond in front of the casino. The narrow public sidewalk abutting the planked walkway is approximately five feet in width and was apparently built after Treasure Island’s completion in order to relieve the pedestrian congestion caused by the performance of the Buccaneer Bay show.2
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.”3 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.
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.4 Indeed, the sidewalks serve as major “public passageway[s]” and “thoroughfarefs]” 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.5 The Court further instructs that traditional public sidewalks are the “archetype of a *420traditional public forum.”6 ‘“[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.”7 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.8
Once the property is determined to be a public forum, the full panoply of First Amendment rights must be recognized and honored. Further, regulation by the government — or by a private actor who has assumed the traditional governmental function of policing the property as the Mirage and Treasure Island have done here — then becomes “sharply circumscribed.”9 Therefore, I believe that the majority is in error in concluding that the Mirage and Treasure Island can regulate speech on the easement areas by virtue of their ownership of the underlying property.10
Although I conclude that the sidewalks in question are public forums to which the full protections of the First Amendment apply, commercial speech promoting illegal activity enjoys no *421such protection.11 Uncontradicted evidence in the record establishes that the solicitations distributed by S.O.C. and Hillsboro advertise the services of erotic performers. The advertisements often leave little doubt that physical sexual activity is part of the services offered. Additionally, Las Vegas police officers testified at the hearing below that eighty to ninety-five percent of transactions made through these solicitations involve actual sexual activity. Although some counties and cities in Nevada permit prostitution, Las Vegas does not. Therefore, because prostitution is an unlawful activity in Las Vegas, I believe that the distribution of the advertisements may not fall within the scope of First Amendment protection.
Accordingly, there exists an alternative ground on which the district court may conclude that the Mirage and Treasure Island have shown a likelihood of success on the merits and a reasonable probability of irreparable harm. Because the district court expressly declined to address this issue, however, remand for further consideration is necessary. Accordingly, I dissent from the majority and prefer instead to remand the matter to the district court for a determination of whether the advertisements in fact promote illegal activity and therefore are not entitled to First Amendment protection.
Although the diagram is a fair representation of the easement area, it is not drawn to scale and may contain minor irregularities.
At trial, there may be evidence presented that establishes that the principal purpose of the planked area is not to serve as a public sidewalk and that adequate space is provided by the abutting public sidewalk to meet the demands of a public thoroughfare along the Strip. However, at this time, it appears that the two walkways fronting Treasure Island function coextensively as public thoroughfares except during the small portions of the day when the Buccaneer Bay show is being performed. Cf. United States v. Kokinda, 497 U.S. 720, 728-29 (1990) (noting that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum”).
Marsh v. Alabama, 326 U.S. 501, 506 (1946); see also Hague v. CIO, 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.”).
As the vice president and general counsel of the Mirage testified, the sidewalks are used by: “Guests of the Mirage and Treasure Island. People who live in Las Vegas and want to come to Treasure Island and the Mirage. People who are guests of other properties and want to go from one property to another on our side of the [Strip], . . . Whether you were a resident, whether your were a visitor, whether you were a guest, whether you were a business person, you would move on that sidewalk.”
Kokinda, 497 U.S. at 727-28 (emphasizing that the use of a sidewalk as a “public passageway” or “thoroughfare” to “facilitate the daily commerce and life of the neighborhood or city” are the characteristics of sidewalks that are traditional public forums).
Frisby v. Schultz, 487 U.S. 474, 480 (1988).
Id. at 480 (quoting Hague, 307 U.S. at 515).
Indeed, it is the central location of the sidewalks and their use as commercial arteries that distinguishes them from the private walkways considered in the cases relied on by the majority. The cases cited by the majority instead deal with walkways abutting private access roads, private parking lots, or other private grounds. Unlike the sidewalks at issue here, none of the cases cited consider a walkway that abuts a city’s most commercially important boulevard and that functions as a critical pedestrian thoroughfare along that boulevard.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also Venetian Casino Resort v. Local Joint Exec. Bd. of Las Vegas, 45 F. Supp. 2d 1027, 1035 (D. Nev. 1999) (“Thoroughfare sidewalks parallel to the main public street in a city, that allow citizens to move from one part of the city to the next, have traditionally been exclusively owned and maintained by the government. Consequently, by owning and maintaining the particular sidewalk at issue in this case, the Venetian is performing a public function.”).
See Venetian, 45 F. Supp. 2d at 1035-36 (holding that the sidewalk in front of the Venetian casino, which lies directly across from the Mirage and Treasure Island on the Strip, was a public forum subject to the full protections of the First Amendment despite the sidewalk’s private ownership); Citizens to End Animal Suffering & Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65, 70-72 (D. Mass. 1990) (holding that the lanes in the Faneuil Hall Marketplace were public forums subject to the full protections of the First Amendment despite their being leased to a private enterprise).
See Princess Sea Indus, v. State of Nev., 97 Nev. 534, 537, 635 P.2d 281, 283 (1981) (holding that NRS 201.440, which prohibits advertisements for prostitution in counties and cities where prostitution is illegal, does not violate the First Amendment because commercial speech for an illegal activity can be severely regulated); see also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 388-89 (1973) (“Any First Amendment interest which might be served by advertising an ordinary commercial proposal ... is altogether absent when the commercial activity itself is illegal.”).