The Napalm Girl continues to define free speech

It’s a photo you may have already seen. Captured in stark black and white, several Vietnamese children run down a road, flanked by soldiers. In the left foreground, there is a crying child whose mouth is contorted. But the viewer’s eye drifts toward the center and the main subject of the photograph: a 9-year-old girl, who is naked, crying, and shrieking in agony from the burns on her body. The photograph is titled “The Terror of War,” but it is ubiquitously known as the Napalm Girl photograph.

The napalm attack that the children were fleeing was an instance of friendly fire, carried out by South Vietnamese forces allied with the United States, flying American-made planes and dropping American napalm in an attempt to flush out Northern forces from hiding. This image, for which Huỳnh Công “Nick” Út was awarded a Pulitzer Prize, was taken in Trảng Bàng, an hour’s drive northwest of today’s Ho Chi Minh City, in June 1972.

“The Terror of War” is sometimes credited with ending the war through sheer emotional impact, swinging American public opinion toward military withdrawal and eventually bringing about the Paris Peace Accords in January 1973. The photograph was indeed powerful. (US President Richard Nixon can be heard wondering whether the photograph had been doctored in a White House audio recording. In another, he encouraged Henry Kissinger to “think big” and suggested the nuclear bomb.) But in truth, the tide of public opinion had already turned years prior. A year before the photograph was taken, 61 percent of American respondents to a June 1971 Gallup poll answered that it had been a mistake to send US troops to Vietnam; only 28 percent maintained that it had not. Six years earlier, in August 1965, only 24 percent had believed involvement to be a mistake, while 61 percent had not.

If the Napalm Girl photograph played a role in ending the war, it was as part of a larger technological media shift that had pervaded the entire Vietnam War. From the 1950s until its withdrawal from the war in 1973, the US supplied arms, troops, and death to Southeast Asia. Contemporaneous developments in media technology — that is, television broadcasting and photojournalism — made war newly visible to the American public. The response was overwhelming. Until as recently as 1945, political or religious commitment to pacifism could serve as a bar to naturalization, but the Vietnam War redefined antiwar activism as mainstream societal discontent, taken up by intellectuals, rockstars, and Hollywood celebrities alike.

It is no wonder that this era generated some of America’s most important case law around the freedom of speech. In the Pentagon Papers case, the Nixon Administration targeted the press that had brought home the horror of war; countless cases related to antiwar demonstrations redefined everything from students’ right to protest to the legality of displaying the word “fuck” in public.

As with Nixon, today’s executive has launched an onslaught on speech, including plans to expand ICE’s existing surveillance dragnet by punishing noncitizens merely for perceived dissent on social media. These attacks reflect how, in the present day, much of American political life in no small part takes place online, via internet platforms and social media networks with complex and often opaque content moderation apparatuses. There, the legacy of the Vietnam War can also be found.

“The Terror of War” is, after all, a violent, nonconsensual nude image of a child. It is also of tremendous historical importance — and before it became history itself, it was hard-hitting, weighty speech of a political nature. It is a troubling photograph that lives at the boundary of free speech; a difficult edge case for social media platforms that has come up time and again as they set, adjust, and modify their content moderation standards. The Napalm Girl photograph has left an indelible mark on how speech is governed, despite never establishing court precedent at all.

The girl in the photograph, Kim Phúc Phan Thị, defected to Canada some decades later. In 2022, she penned an op-ed in The New York Times, looking back on the 50 years since the picture was taken, during which she had been reduced to “a symbol of the horrors of war.”

Phan grew up “detesting” the photograph, which had been shot and distributed without her consent. “I thought to myself, ‘I am a little girl. I am naked. Why did he take that picture? Why didn’t my parents protect me? Why did he print that photo? Why was I the only kid naked while my brothers and cousins in the photo had their clothes on?’”

She was grateful to the photographer for later taking her to receive medical care; she even credited him with saving her life. But still, Phan identified a sense of violation, trauma layered on top of trauma, an assault on her privacy and bodily autonomy that was inextricable from her memories of the war and the burn scars she carried on one-third of her body.

The historical importance and wide dissemination of “The Terror of War” is particularly bizarre, given that nude images of children are a category of speech that is infamous for its inflexible prohibition. These images are so categorically condemned that Congress passed a law in 1996 that banned “sexually explicit images that appear to depict minors” that were produced without using any real children — a prohibition so broad that it practically anticipates current-day debates on nonconsensual AI-generated pornography. (The Supreme Court partially struck down the law, finding the broadest provisions to violate the First Amendment; some years later, the similarly written 2003 Protect Act was ultimately upheld.)

The prohibitions on child pornography are so broad, so socially uncontested, that there is not much room for debate. But discussion of the lasting impact that a photograph can have on its subject can be found with respect to a newer, overlapping category of prohibited speech: nonconsensual intimate images, sometimes called revenge porn. The banned activity usually involves the distribution of explicit images of individuals without their consent and may include images originally obtained or produced without consent (e.g., hidden camera footage, deepfakes), as well as images that were originally obtained with consent (e.g., something shared with a romantic partner) but distributed without consent. In either case, such violations can cause reputational and psychological harm that is irreparable.

Nonconsensual intimate images are a relatively new category of banned speech, one that is prohibited through a federal cause of action in the 2022 Violence Against Women Act Reauthorization Act, a patchwork set of narrowly tailored state laws, and content moderation standards across the internet.

Not very many people can say that they, too, were victims of a napalm attack, but the emotional damage that Phan attributes to “The Terror of War” will sound all too familiar to other victims of nonconsensual intimate images — her anxiety and shame, her unwilling place in the public eye. Her photograph was neither taken nor disseminated with malicious intent, but intent cannot erase impact. Her account of the psychological turmoil she experienced over the decades is deeply troubling, particularly when one considers how “The Terror of War” is treated as an exception and counterpoint to other nonconsensual nude images, whether of adults or minors.

The Napalm Girl photograph is a recurring motif in current speech policy, which is due to a rash in nonconsensual intimate images online and the activism to shut it down, whether through statutes or platform content moderation. In 2014, when the Arizona state legislature criminalized the display, publication, and sale of such images, the ACLU of Arizona argued — successfully — that the statute as written was overbroad, since it would have prohibited the dissemination of the Napalm Girl photograph, among other historically significant photos. When Rhode Island passed its own law, its ACLU affiliate once again raised the specter of “The Terror of War,” saying that, as written, “a newspaper would have to think twice before publishing an iconic photo like the Vietnam ‘napalm girl’ because the dissemination of such a photo could run afoul of the law depending on a jury’s view of its ‘newsworthiness.’”

While courts and legislatures across the country grappled with balancing nonconsensual intimate images against the historical and political impact of the Napalm Girl, social media platforms like Facebook were developing their own content moderation policies in parallel. In 2016, Norwegian journalist Tom Egeland included the Napalm Girl photograph in a piece on famous images of war. It featured as the banner image for the article on Facebook, which removed the post and suspended Egeland, citing impermissible nudity. When his newspaper, Aftenposten, reported on the suspension, Facebook responded that “[a]ny photographs of people displaying fully nude genitalia or buttocks, or fully nude female breast, will be removed.” Aftenposten’s article reporting on the removal of the article — which also featured the Napalm Girl photograph — was then deleted from the paper’s Facebook page.

Facebook retreated from its position after sustained outrage. “Sometimes, the global and historical importance of a photo like ‘Terror of War’ outweighs the importance of keeping nudity off Facebook,” Justin Osofsky, Meta’s head of partnerships and business development, posted in concession.

Although Facebook characterized the deletion as a “mistake,” employees later told Reuters that the Napalm Girl photograph had been used specifically as a training example for content moderation staff, who were instructed that it violated Facebook policy despite historical significance because it depicted a naked child in distress, photographed without her consent.

Meta’s Transparency Center explains that it “introduced [its] newsworthiness allowance in October 2016 after receiving global criticism for removing the iconic ‘Napalm Girl’ photo, which, as a result of this allowance, is visible across [Meta] platforms today.”

The wording oddly conflates “newsworthiness” — which suggests the ongoing or prospective — with historical significance. Meta’s other publicly listed examples of newsworthy determinations all involve contemporary war or political debates. It’s unclear how many, if any, among the 169 total between June 2021 through June 2024 involve historical photojournalism, though we do know that in 2018, Facebook deleted and later reinstated a post on Holocaust awareness that used a photograph of stripped and emaciated children in a Nazi concentration camp. The restoration of the post came with apologies and acknowledgment of an “important image of historical significance.”

Since November 18th, 2020, Meta’s child nudity policy has provided an exception for “[i]magery posted by a news agency that depicts child nudity in the context of famine, genocide, war crimes, or crimes against humanity, unless accompanied by a violating caption or shared in a violating context, in which case the content is removed.” The policy might as well bear Phan’s name.

No photo could launch an antiwar movement; rather, the movement captioned the photo

So what has the photograph of Phan been retroactively tasked with, when it is held up as an image of “global and historical significance”? The treacly notion that this image ended the war because Americans had never before seen the true violence of war doesn’t hold up to scrutiny.

The death and destruction left behind on the battlefield of Gettysburg was documented in soft sepia tones. The horrors of Dachau were photographed and published en masse as a series of postcards at the immediate close of World War II, possibly as part of a larger campaign to publicize Nazi atrocities. In 1968, only four years prior to the publication of “The Terror of War,” hundreds of unarmed civilians were massacred at Mỹ Lai. The extensive photographic documentation of the slaughter was made public the following year when William Calley Jr. was court-martialed. In On Photography, Susan Sontag mused on whether the American public would have more vociferously opposed the Korean War if had been confronted with the photographic barrage that came with Vietnam. Sontag ultimately dismissed the possibility, concluding instead that the Vietnam War had already been “defined by a significant number of people as a savage colonialist war” and that the photographs — many of which had a military origin and “were taken with quite a different use in mind” — were published by the media in a preexisting social context and narrative. No photo could launch an antiwar movement; rather, the movement captioned the photo.

Today, mass civilian murders and war crimes have been robustly documented by both local and international photojournalists in Gaza, Mariupol, and Goma. If the notion that a single image could change the world in 1972 is suspect, it seems all the more implausible in today’s information environment, where the ease of online dissemination and more sophisticated image creation, editing, and generation tools subjects us to a merciless barrage of content. At the 24-hour online cinerama, all military carnage is rendered mundane, though some atrocities are branded more mundane than others.

Meanwhile, the Napalm Girl photograph continues to haunt First Amendment law. As recently as 2022, an Indiana state appellate judge referenced the photograph in a dissent on a child pornography conviction. Lawyers, as a class, might be criticized for a medical dependence on hypotheticals, but the Napalm Girl photograph is not just a holster-ready gotcha to foil attempts at regulating nonconsensual image capture and proliferation. Rather, like many edge cases, it helps us think: despite it unquestionably violating most people’s social mores, most people would also agree on the photograph’s historical significance.

As an edge case, “The Terror of War” elicits something unworkably tautological about trying to determine whether an image is important enough to override a general prohibition on child nudity. If “historical significance” is a criterion, the Napalm Girl’s photograph will only become compoundingly more significant the longer it survives and the more it is referenced. And the longer the Napalm Girl is the standard, the more impossible it becomes to supplant it as the premier edge case. Even as the particulars of the Vietnam War blur and fade away from American memory, the photograph collects tenure in its role as a standard of historical import. Content moderation policies will evolve and change — that is the nature of content moderation, after all — but the photograph of Kim Phúc Phan Thị will remain, a guidepost by which speech is measured.