A few readers asked, apropos this post: Does the Nebraska ACLU have an ethical obligation to try to protect its client, even if that means asking for a court-imposed restriction on the press, and perhaps undermining its credibiltiy in future free speech cases?

My understanding -- which my colleague Norm Spaulding confirms -- is that (1) the ACLU can probably ask the client to agree up front that there are some things it won't do to represent him, but (2) if there was no such agreement, the ACLU may in fact be obligated to do all it can to protect the client. (I had meant to foreshadow that in the original post, but forgot to.) Public interest organizations often do agree with a client that the organization will do certain things (for instance, litigate the theory that is likely to set the precedent they like) and not do other things even if they're in the client's best interest (for instance, spend many hours getting the client a remedy that sets no helpful precedent). That's part of the deal: If a public interest firm is to invest its time and effort in a case, it can reasonably insist that it will seek those remedies that really serve its goals, and that it won't do other things that undermine its goals.

So I think the Nebraska ACLU should have made clear to the client up front that it wouldn't try to gag the media as part of its attempt to protect the client. But if it failed to do so, then maybe it is indeed stuck.

Here's the ACLU's press release, by the way:

ACLU denied court order protecting client from danger of attacks in Ten Commandments Case

ACLU Nebraska announced today that it sought and was denied a restraining order prohibiting the Omaha World Herald from identifying a plaintiff whose identity is under a court-ordered protective seal. The ACLU appeared before Judge Richard Kopf on Tuesday afternoon and asked the court for a temporary restraining order protecting the identify of John Doe, the plaintiff in the ACLU's suit over a religious monument in a Plattsmouth city park.

"We are concerned that our client's life will be placed at risk if his name is disclosed," said ACLU Executive Director Tim Butz. "We are at a loss to explain how identifying him by name will foster any public debate. All it will do is fuel hatred and perhaps lead to harm to our client and his family. Now that the World Herald has been told it may publish our client's name, we ask in the name of common decency that they not do so.

"The World Herald has already shown its editorial hostility to our Plattsmouth case and will paint our efforts as a violation of the First Amendment. We see it as something we were required to do in order to zealously represent our client's interest. In a perfect world, we would not have had to do seek this order, but then in a perfect world the newspaper would not have threatened to place our client's life at risk.

"It is unusual for the ACLU to be in court taking a position such as this, and we are the first to admit that this was difficult for us to do. The World Herald placed us in a conflict not of our choosing. We had only two choices, and we did not like either of them. We could do something that appears at first blush to be contrary to the First Amendment or we could do nothing and allow our client to be placed in jeopardy.

"Had there been time, we would have preferred to have a non-ACLU attorney represent him in today's hearing, but the World Herald would not give us any assurances that they would not publish his name before this could happen. As his counsel of record, our attorneys had to act and act quickly. The canon of ethics requires that we act in our client's interest and not in our own.

"We will review today's order with our client and allow him to determine what next steps will be taken."