S.O.C., Inc. v. Mirage Casino-HotelS.O.C., Inc. v. Mirage Casino-Hotel
Lead Opinion
By the Court,
This case presents several issues related to the exclusion of commercial handbillers from property that is privately owned. We conclude that the district court did not err in making a preliminary determination that owners of private property may exclude commercial handbillers and such exclusion is not a violation of the Nevada or United States Constitutions.
FACTS
S.O.C., Inc., Hillsboro Enterprises, Inc., and Hillsboro Enterprises, Ltd.,
The Mirage Casino-Hotel, a Nevada corporation, and Treasure Island Corporation, a Nevada corporation, are hotel-casinos located on real property in Clark County, Nevada, which is bordered by Las Vegas Boulevard South (commonly referred to as the “Strip”), Spring Mountain Road, Industrial Road, and private property known as Caesars Palace.
Along the front of the Mirage properties,
In October 1993, as part of the zoning, licensing, and building plans for the Mirage resort, the Mirage conveyed to Clark County a ‘ ‘perpetual pedestrian easement over, under, and across the parcel of land” upon which the sidewalk at issue is abutted. The legal description of the easement states that it is a “pedestrian easement for the west right-of-way of Las Vegas Boulevard.’ ’
At one time, there were publicly-owned sidewalks located along Las Vegas Boulevard; however, these public sidewalks were removed to accommodate the widening of the Boulevard when larger resorts were built along the Strip. The record on appeal is not clear with respect to whether the building of the Mirage and Treasure Island necessitated the widening of the Strip and the elimination of the publicly-owned sidewalks.
On April 15, 1999, the Mirage filed suit against S.O.C./Hillsboro alleging that
The district court held an evidentiary hearing on the motion for preliminary injunction which included the presentation of several witnesses and other documentary evidence.
The district court judge allowed the parties to submit additional briefs and took the matter under advisement. On June 30, 1999, the district court granted Mirage’s request for a temporary injunction. In an oral hearing on the motion, the district court judge indicated that he did not think S.O.C./Hillsboro’s arguments regarding the First Amendment were persuasive and that the Mirage was entitled to protect its private property by seeking to exclude commercial handbillers. The preliminary injunction was filed on July 8, 1999. S.O.C./Hillsboro made a timely appeal to this court on July 22, 1999.
DISCUSSION
The decision to grant or deny a preliminary injunction is within the sound discretion of the trial court, and that discretion will not be disturbed аbsent abuse.
A party seeking the issuance of a preliminary injunction bears the burden of establishing (1) a likelihood of success on the merits; and (2) a reasonable probability that the non-moving party’s conduct, if allowed to continue, will cause irreparable harm for which compensatory damage is an inadequate remedy.
The easement
S.O.C./Hillsboro argue that the district court erred in granting the injunction because the Mirage sidewаlks are encumbered by a perpetual easement allowing for public access. They further argue that the activities of the handbillers fall within the permissible scope of the perpetual easement.
We disagree. We conclude instead that the mere existence of the easement does not implicate the protections of the First Amendment. In addition, because of the procedural posture of the case and in light of the facts considered by the district court, we conclude that the district court did not err in finding the easement alone was insufficient to convert private property to a public forum for the purpose of entering the preliminary injunction.
In October 1993, the Mirage granted Clark County a “perpetual easement and pedestrian easement over, under, and across” the sidewalk property involved in this litigation. The easement also contained the following descriptive language: “a perpetual easement for a pedestrian and maintenance easement for streetlights, traffic control devices and for detectors over, under, and across the parcel of land.”
The extent of an easement, like any other conveyance of rights in real property, is fixed by the language of the instrument granting the right.
The cases generally hold that an easement obtained by a governmental entity for a public use is only as broad as necessary for the accomplishment of the public purpose for which the easement was obtained and, to the extent the easement holder exceeds this right, it will be regarded as a trespasser and is responsible for damages.
Any misuse of the land or deviation from the intended use of the land is a trespass for which thе owner may seek relief.
We conclude that the easement, by its express language, is limited to pedestrian uses of the sidewalk 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” еxception 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.
The First Amendment of the United States Constitution provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.”
The generаl rule is that the Constitution does not apply to private conduct. See Hudgens v. N.L.R.B.,424 U.S. 507 , 513,96 S.Ct. 1029 ,47 L.Ed.2d 196 (1976). There are very limited exceptions to this time honored principle. One occurs in the rare instance where a private actor is performing a function that has traditionally beenexclusively performed by the state. See Flagg Bros. v. Brooks, 436 U.S. 149 , 156-59,98 S.Ct. 1729 ,56 L.Ed.2d 185 . For example, in Marsh v. Alabama, 326 U.S. 501,66 S.Ct. 276 ,90 L.Ed. 265 (1946), a private company owned an entire town performing all of the usual municipal functions and owning all the buildings and sidewalks. Id. at 502-03,66 S.Ct. 276 . The Court found that the Constitution applied to the activity in the company owned town. Id. at 508,66 S.Ct. 276 .19
The “public function” doctrine created in Marsh is a means of satisfying the state action requirement. The doctrine provides:
The state cannot free itself from the limitations of the Constitution in the operation of its governmental functions merely by delegating certain functions to otherwise private individuals. If private actors assume the role of the state by engaging in these governmental functions then they subject themselves to the same limitations on their freedom of action as would be imposed upon the state itself.20 .
We conclude that S.O.C./Hillsboro rely on an unintended and overly broad reading of Marsh v. Alabama
First, Marsh has been consistently interpreted to apply to a very narrow set of facts where the entity in question performed ‘ ‘ ‘the full spectram of municipal powers and stood in the shoes of the State.’ ’ ’
Second, an overly broad application of the exception to the state action requirеment would swallow the rule. We conclude that compelling policy reasons exist in support of a narrow reading of the “state action” requirement. As Professor Tribe explains:
By exempting private action from the reach of the Constitution’s prohibitions, it stops the Constitution short of preempting individual liberty — of denying to individuals the freedom to make certain choices .... Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution’s demands.23
We hold that the district court did not err in making a preliminary finding that by owning and maintaining the particular sidewalks at issue in this case, the Mirage is not automatically performing a public function and therefore cannot be hеld to the Constitutional requirements of the First Amendment.
Public forum
S.O.C./Hillsboro argue that sidewalks, no matter who maintains title, are a public forum subject to a heightened level of protection. We disagree. Privately-owned property does not lose its private nature because the public traverses upon it. In addition, inherent within our conclusion, that the district court did not err in finding that no state action has occurred, is the corollary that the forum is private.
The United States Supreme Court has formulated an approach to the protection of free speech based largely on the type of forum involved.
S.O.C./Hillsboro cite to the often-quoted United States Supreme Court decision in Hague v. CIO
The “right to exclude others” has been held to constitute a “fundamental element of private property ownership.”
The cases that raise this issue generally concern one of three forums: (1) privately-owned shopping malls, (2) medical clinics, and (3) privately-owned streets or walkways. We conclude that private property does not lose its private nature because it is open to the public.
Especially relevant and helpful to this discussion is the Michigan Court of Appeals decision in Commodities Export Co. v. City of Detroit.
Other courts have also consistently ruled that private property held open to the public does not, in and of itself, create a public right to access.
Article 1, Section 9 of the Nevada Constitution
S.O.C./Hillsboro argue that the protections of Article 1, Section 9 of the Nevada Constitution should be interpreted more broadly than the protections of the First Amendment to the United States Constitution. They argue that a broader reading of the Nevada Constitution would afford greater protection to the type of speech activity involved in this case. S.O.C./Hillsboro invite this court to adopt the rationale of the California Supreme Court decision in Robins v. PruneYard Shopping Center.
In Robins, the California Supreme Court held that the California Constitution protected the right of individuals to solicit signatures in opposition to the United Nations resolution concerning “Zionism” in the courtyard of a privately-owned shopping center.
The provision of the Nevada Constitution upon which S.O.C./Hillsboro rely is Article 1, Section 9, which provides in relevant part:
Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
The language of this section has remained unchanged since the adoption of our first state constitution in 1864. Having reviewed the proceedings and debates of the Nevada Constitutional Convention, we conclude that there is nothing indicating that the delegates
This court has never construed the state constitutional free speech provision in the context of accommodation of speech on private property. Our decisions addressing accommodation of speech on public and private property have relied equally on the First Amendment and the Nevada Constitution without distinguishing between them.
The majority of courts having virtually identical state constitutional language to Nevada’s have interpreted the free speech provisions of their constitutions as coextensive to, but no greater than, that of the First Amendment to the United States Constitution.
In addition, regardless of whether the state constitution should be read more broadly or not, S.O.C./Hillsboro still must establish that the Nevada Constitution restrains private conduct. We conclude, however, that nothing indicates that Article 1, Section 9 was intended to restrain private conduct. Accordingly, S.O.C./Hillsboro’s position must fail.
Preliminary injunction
Finally, S.O.C./Hillsboro argue that the district court abused its discretion in granting the preliminary injunction because Mirage’s legal argument would not have prevailed, the Mirage could not prove irreparable harm, and the loss of unfettered speech outweighs any harm suffered by the Mirage. Having concluded that the Mirage has made a prima facie case that it is entitled to exclude the commercial handbillers, we find no abuse of discretion by the district court.
This court has previously held that an injunction is an appropriate remedy for the threat of continuing trespass.
Notes
For the sake of convenience, the parties are rеferred to as S.O.C. /Hillsboro.
The Mirage and Treasure Island are both wholly-owned subsidiaries of Mirage Resorts, Incorporated. The property involved here is owned entirely by the Mirage Casino-Hotel; Treasure Island leases the land it sits upon from the Mirage Casino-Hotel.
For the purpose of this appeal, the public sidewalk parallel to the plank sidewalk is not at issue. The district court’s preliminary injunction specifically did not apply to the public sidewalk.
See Dangberg Holdings v. Douglas Co.,
Id.
Hermann Trust v. Varco-Pruden Buildings,
Nelson v. Peckham Plaza Partnerships,
SIIS v. United Exposition Services Co.,
See Dangberg Holdings,
See Cox v. Glenbrook Co.,
See Sanders v. Lutz,
See, e.g., Brown v. Eoff,
See Mielke v. Yellowstone Pipeline Co.,
See NRS 207.200; Restatement (Second) of Torts § 192 (1981).
Restatement (Second) of Torts § 192 cmt. d (1981).
U.S. Const, amend. I.
Hudgens v. NLRB,
Venetian Casino Resort v. Local Joint Executive Bd. of Las Vegas, 45 F. Supp. 2d 1027 (D. Nev. 1999).
2 R. Rotunda, J. Nowak & J. Young, Constitutional Law § 16.2, at 771 (1999).
Hudgens v. NLRB,
L. Tribe, American Constitutional Law% 18-2, at 1691 (2d ed. 1988).
See Perry Educ. Ass’n v. Perry Local Educ. Ass’n,
Id. at 44.
Id. at 45.
Id.
See id. at 46.
Id. at 45.
See Armes v. Philadelphia, 706 E Supp. 1156, 1164 (E.D. Pa. 1989); and Hudgens v. NLRB,
Bresnick v. Beulah Park Ltd. P’ship,
See PruneYard Shopping Center v. Robins,
Id. at 844.
Id.
Id. at 847.
Id.
See Southwest Community Resources, Inc. v. Simon Property Group, LP,
S.O.C./Hillsboro also cite to the decision of the Ninth Circuit Court of Appeals in S.O.C. v. Clark County,
Robins,
Id. at 81.
See Mesquite v. Aladdin’s Castle, Inc.,
&e generally Andrew Marsh, Nevada Constitutional Debates and Proceedings, Official Reporter, at 44-48 (1866).
See Culinary Workers v. Court,
See NLRB v. Calkins,
See, e.g., Fiesta Mall Venture v. Mecham Recall Comm., 161 P.2d 719, 723 (Ariz. Ct. App. 1988); Citizens for Ethical Government, Inc. v. Gwinnett Place Assocs.,
See Cook v. Maremont-Holland Co.,
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this matter.
Concurrence Opinion
with whom Shearing, J., agrees, concurring in the result:
I concur in the majority’s result, albeit for alternate reasons.
I write sеparately because I believe the appellants’ commercial speech invites a lowered First Amendment scrutiny, and, accordingly, the district court properly enjoined the handbillers’ activities.
Nevertheless, the speech at issue in Venetian and in the case upon which Venetian primarily relies, Marsh v. Alabama,
Commercial speech may be suppressed even where, as here, it is conducted in a traditional public forum.
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 advеrtise 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.
Id. at 1036.
See Central Hudson Gas & Elec. v. Public Serv. Comm’n,
Metromedia Inc. v. San Diego,
See Metromedia; Cincinnati v. Discovery Network, Inc.,
Dissenting Opinion
dissenting:
The real property in question consists of two traditional sidewalks abutting Las Vegas Boulevard that are traversed daily by thousands 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 thоroughfares, 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
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 Boulevard
[[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 which 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.
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 sidewalks at issue here serve as critical commercial arteries along the Las Vegas Strip and funсtion in every other respect as traditional public sidewalks.
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.”
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 mаjority 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 frоnting 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,
Marsh v. Alabama,
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 onе 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,
Frisby v. Schultz,
Id. at 480 (quoting Hague,
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,
See Venetian,
See Princess Sea Indus, v. State of Nev.,