sign or pass leaflets at the Supreme Court at a particular time and place, for a particular purpose. Compare Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. at 578. At least until plaintiffs have sought relief from the Marshal, and he has denied it by action (or inaction), this suit should not be entertained.
Plaintiffs' obligation to pursue their administrative remedy is neither foreclosed nor rendered futile by the Marshal's affidavit in this case or by his broad construction of the statute described there. The affidavit does not purport to reflect exercise by the Marshal of his power to issue and publish regulations relating to order and decorum at the Supreme Court. The affidavit does not notify the public in the manner contemplated by § 13l of the Marshal's view of the reach of the statute.
Nor does the affidavit reflect consideration by the Marshal of a particular application to engage in particular expressive conduct at a particular place or time.
It may be that in the context of the decided cases the Marshal, in his discretion, would adopt regulations which do not categorically proscribe a single statement in a decorous sign of modest size and proportion by a lone individual when, for example, the Court is in recess. Or the Marshal may choose to publish a regulation or deny a permit application by plaintiffs in terms that would clarify the reach of the relevant statutes along the lines indicated in the Marshal's affidavit. There is potential merit in a regulation construing § 13k to draw sharp, clear lines which would narrow the Marshal's discretion to make judgments about the intention of leafletters and sign carriers or to attempt to distinguish between them on account of the content of the messages. In addition, accompanying comment on a regulation or ruling might communicate to the plaintiffs and to the public an appreciation of the constitutional need to facilitate the ability of courts, and particularly the Supreme Court, "to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures." See Cox v. Louisiana, 379 U.S. at 583, 85 S. Ct. at 471 (Black, J., concurring).
This is not a case where time is of the essence of plaintiffs' first amendment claim. They make their first amendment claim for the limited purpose of defining (as distinguished from exercising) first amendment rights. This they are free to do by application to the Marshal without risk of arrest. Furthermore, they do not deny that in the interim they could freely express themselves publicly on any subject at many other nearby places. And, as a matter of fact, there is no prior restraint on plaintiffs' exercise of their claimed rights on the Supreme Court grounds, except their uncertainty as to whether such rights exist and the risk of arrest. Freedom from such uncertainty and risk is not necessarily and universally guaranteed by the constitution.
Until the plaintiffs have attempted and exhausted administrative application to the Supreme Court Marshal for a regulation or a permit, the threat of arrest is not an impermissible prior restraint on the plaintiffs' opportunity to test their right to engage in expressive conduct on the Supreme Court grounds. Therefore, they have not established a claim which justifies judicial intervention through the extraordinary processes of declaratory judgment and injunction.
Given this disposition of the matter, and pending application by the plaintiffs to the Marshal, it is unnecessary to consider the plaintiffs' claim of discriminatory enforcement because local newspapers are sold from vending machines on the Supreme Court grounds.