Below is my column in the New York Post on the riot caused by Kai Cenat in New York. Torts has long struggled with the vicarious liability of promoters and celebrities for accidents. However, the use of criminal charges, in my view, is neither needed nor wise.
Here is the column:
Kai Cenat is live streamer and YouTuber who occupies that new but pervasive status of “influencer.”
It is a category that stretches from teenage fashion mavens to virtual human crash dummies. Influencers like Isabella Barrett, 15, are worth millions for “livin the life girl!”
Influence, of course, can be a dangerous thing when the influencer has little sense or restraint.
Kai Cenat, 21, is just that type of influencer.
Cenat “became a thing” by doing pranks and accepting challenges.
The college dropout quickly attracted a large following and even larger income.
The single greatest influence was a riot this week in New York after he told his 20 million followers that he was going to Union Square Park to give out free PlayStation 5s, computers, microphones and other valuable items.
The result was a mob numbered in the thousands that became a riot in which hundreds of police were deployed, 65 people were arrested, and both bystanders and police were injured.
For his influencing the situation, Cenat was charged with inciting a riot and unlawful assembly.
I have little sympathy for Cenat and agree that he should be held accountable for the damage.
The question is whether such negligence should be made a criminal rather than a civil matter.
Cenat did not encourage or call for violence. He clearly was hoping to “create a scene” but had little reason to want a riot.
The law has long struggled with such dangerous attractions in civil cases. One of the leading authorities in the area of promotional liability is the Weirum v. RKO decision, holding a radio station liable for injuries caused to a third party when teenagers drove recklessly to find The Real Don Steele in his marked van.
The defendants insisted that they expected participants to follow the law in seeking the prizes.
The court held that the reckless driving was a foreseeable response of teenagers to the promise of free concert tickets.
There is no question that the city could hold Cenat liable for failing to get a permit and causing property damage. Likewise, individuals can sue him civilly for some of this damage.
However, here, the authorities want to convict Cenat criminally under Section 240.08., which states that “a person is guilty of inciting to riot when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm.”
While Cenat may have created a “tumultuous” scene, there is no evidence that Cenat encouraged violence of any kind. Indeed, observers said that he seemed surprised by both the size and the conduct of the crowd.
Accounts indicate that Cenat was quickly whisked away to safety as the scene spiraled out of control with rioters climbing on to his vehicle.
The other people charged committed battery and other violent acts. However, Cenat did not.
The prosecutors will likely rely on arguments that the intent to commit the crime can be based on recklessness.
He certainly was reckless, but the use of such standards criminalizes negligence — a trend that some of us have long resisted.
In other words, he was stupid and reckless, but not necessarily criminal.
What is interesting is Cenat’s case has some similarities to the claims against former president Donald Trump.
While the Special Counsel did not charge Trump with incitement, he was impeached on that basis and many insisted that he easily satisfied the elements for the crime.
I disagreed with that view. Yet, the claim was that, even though Trump told his followers to go “peacefully” to the Capitol to protest certification of the election, he caused the riot that followed on January 6th.
Obviously, Smith (who was willing to stretch the existing law to bring four counts) saw the incitement charge as unsupportable on the evidence.
The problem with the criminal charges against Cenat is where to draw the line.
If Taylor Swift says that she is going to be anywhere (let alone promising to take pictures with fans), there is a chance of a riot. If it gets out of hand, should Swift be criminally charged.
Likewise, when Feline’s Basement has its annual bridal sale there is often the making of a riot. That does not mean that the executives of Feline’s Basement should go to the Big House.
Tort law and civil fines force such celebrities and companies to be accountable for the creation of dangerous or “tumultuous” circumstances.
Whether you are a clothier or an influencer, it is all about making money.
So what do we do with Cenat? In my view, they should sue him civilly, not throw the book at him criminally.
In the end, Cenat is a fool, but not a felon.
Jonathan Turley is an attorney and professor at George Washington University Law School.