Defenders of WikiLeaks founder Julian Assange experienced a double disappointment in the early weeks of 2021. Although President Donald Trump had dropped hints that he might pardon Assange, along with Edward Snowden and other whistleblowers who had exposed misconduct on the part of U.S. national security agencies, he ultimately failed to do so. Then Joe Biden’s new administration stated that it intended to continue efforts to extradite Assange from Britain and compel him to stand trial in the United States for espionage.

If Biden’s Justice Department does successfully prosecute Assange, the precedent would pose a serious threat to freedom of the press. Since the 1971 U.S. Supreme Court ruling in the Pentagon Papers case, a succession of presidential administrations have refrained from prosecuting journalists for publishing stories based on leaked classified materials, even though the Court’s ruling explicitly rejected only efforts at prior restraint, not post-publication prosecution. However, the administrations of George W. Bush and Barack Obama made increasingly aggressive efforts to punish sources who leaked such documents. Worse, Obama’s Justice Department openly stated that it could have charged the collaborating journalists, but simply chose not to take that step for policy reasons. The original (single) charge against Assange also originated with the Obama administration, suggesting that U.S. officials were moving beyond prosecuting only the sources of leaked materials.

Not only did the Trump administration add 17 espionage charges to the original indictment, it took the position that Assange was not a “legitimate” journalist, and therefore whatever protections the Pentagon Papers precedent might afford did not apply in his case. That insidious and dangerous thesis emphasized two arguments. One was that Assange actively solicited leaked documents, not merely received and published them. The other was that WikiLeaks irresponsibly published material in large document dumps without vetting them or exercising other editorial controls. John Demers, the Justice Department’s assistant attorney general for national security, stated that thesis explicitly. “Julian Assange is no journalist,” Demers said, because he engaged in “explicit solicitation of classified information.”

Unfortunately, several prominent establishment publications largely embraced the government’s rationale. A Washington Post editorial argued:

Mr. Assange is not a free-press hero. Yes, WikiLeaks acquired and published secret government documents, many of them newsworthy, as shown by their subsequent use in newspaper articles (including in The Post). Contrary to the norms of journalism, however, Mr. Assange sometimes obtained such records unethically. …Also unlike real journalists, WikiLeaks dumped material into the public domain without any effort independently to verify its factuality or give named individuals an opportunity to comment.

Diligent advocates of press freedoms recognized that such vague standards could jeopardize journalistic practices that were ubiquitous in the field. They viewed even the extradition effort as an alarming development that needed to be fought. The Electronic Frontier Foundation’s Cindy Cohn stated that the case “seems to be a clear attempt to punish Assange for publishing information that the government did not want published, and not merely arising from a single failed attempt at cracking a [computer] password,” which had been the original allegation. She concluded that even if the government’s case ultimately was confined to charges of illegal computer hacking, “we think that neither journalists nor the rest of us should be breathing a sigh of relief.”

A statement from the Knight First Amendment Foundation at Columbia University asserted that the Justice Department’s case would “treat everyday journalistic practices as part of a criminal conspiracy.” The statement added that “it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom—activities like cultivating sources, protecting sources’ identities, and communicating with sources securely.”

Trevor Timm, founder of the Freedom of the Press Foundation, told the London court that if the United States successfully prosecuted Assange, it “would criminalise every reporter who received a secret document whether they asked for it or not.” The U.S. indictments suggested that Assange alone was encouraging people to illegally disclose classified information by publishing a list of most wanted leaks, but that was simply not correct, Timm said in a written statement. He added that if journalists could be charged with “conspiring” with sources to obtain newsworthy information for publication, that precedent would fundamentally alter public discourse. The Justice Department’s rationale essentially would give “a carte blanche to those in power to prosecute whomever they want, whenever they want, even foreigners living halfway around the world.”

A statement from Amnesty International was especially blunt. “This hearing is the latest worrying salvo in a full-scale assault on the right to freedom of expression. If Julian Assange is prosecuted it could have a chilling effect on media freedom, leading publishers and journalists to self-censor in fear of retaliation,” said Amnesty International’s Europe Director, Nils Muižnieks. “If Julian Assange is extradited it will have far reaching human rights implications, setting a chilling precedent for the protection of those who publish classified information in the public interest.”

Assange’s defenders around the world reacted with a sense of relief to the decision of the British court in January 2021 to deny the U.S. extradition request. But the court’s reasoning for the decision was a cause for disquiet, not relief. The ruling relied heavily on concerns about Assange’s fragile physical and mental health and how alleged deficiencies in America’s prison system would further endanger his health. The court did not reject the U.S. government’s arguments about the key points of law involved in the prospective prosecution of Assange for espionage. In other words, the extradition decision fell far, far short of being a vindication of press freedoms. Indeed, it was profoundly disappointing in that respect—and U.S. prosecutors boasted that they had prevailed on every major substantive legal contention. They also stressed their determination to continue the quest for extradition, if a way could be found to meet some of the objections the British court had listed.

Subsequently, the Biden administration announced that it would appeal the extradition ruling and continue Washington’s attempts to bring Assange back to the United States for trial. In doing so, the new administration implicitly adopted the Trump Justice Department’s rationale that Assange was not a legitimate journalist and was instead guilty of espionage.

It’s extremely dangerous to the health of journalism and the First Amendment to allow the government to decide who warrants the “legitimate” label. Critics frequently accused Donald Trump of waging war on a free press, even though most of his actions consisted merely of rude, rhetorical outbursts. That type of petty conduct did not constitute a credible threat to press freedoms. Prosecuting Julian Assange or other maverick journalists for publishing leaked classified information, however, created a very real and alarming threat. Unfortunately, the Biden administration has decided to emulate its predecessor’s worst initiative and continue that menacing campaign.