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.
I love free stuff as much as anyone, but when you have to fight mobs and wait – is that really free?
Time is money.
Add in potential for arrest, and it costs way too much.
So Kai Is a college dropout? How about an honorary degree from Oberlin?
Whoomp!
There it is!
Two is company; three’s a crowd. The police and military have known for centuries that a group can quickly turn into mischief or far worse. In colonial Boston citizens were not allowed to form a group of three on a public sidewalk. Only two could stand on the sidewalk together. There is logic to the idea. From a small group one person can start an argument or throw a rock and then chaos ensues. I am not sure why we allow groups to form today since history has proven the rule about more than two being a crowd.
“Kai Cenat is a Fool, Not a Felon”
– Professor Turley
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Kai Cenat is a fool, just like communist America.
Kai Cenat and communist America promise “free stuff” and “free status” to all otherwise unassimilable foreign comers.
And both Kai Cenat and communist America cause riots comprised of masses of disappointed illegal alien invaders, dependents, and parasites.
Kai Cenat is in jail, and America is $33 trillion in unpayable welfare state debt, with an additional $200+ trillion in unfunded liabilities.
Threats and intimidation are very effective against phantom-guilt-ridden, milquetoast liberals in communist America.
No “free stuff” justice, no peace!
Agreed, perhaps not a felony, but gen z haven proven themselves collectively to largely be an infantile dumpster fire the likes of which we have never seen, this is unprecedented so broadly, and I hope he his hit to the max with every other penalty the law allows. For those involved under 18, I would personally go after each and every parent as well, though I understand that’s a ludicrous fantasy (when I was a kid, truancy etc. was rewarded by punishing the parents, and it worked. Social services may as well no longer exist but in name, but that’s another topic)
For the hippy folks or hippy inclined: this was a riot over video games, not some type of ‘righteous’ pie in the sky activism. It was in one of *the* most privileged and blue cities on earth. Wake the eff up. The ‘system’ did not do this. You, in your failures did. Unfettered, it could indeed get worse. No sympathy, they willfully vote for this and consciously engender and reward the underlying mentality over, and over, and over again in these places these days. If we don’t turn things around soon, our leftist feds will ensure it is universal.
In my reddish, purplish place, this simply would not happen. If it did, it would be shut down so fast no one would have known it happened. But the former is the truer statement: it likely would never happen in the first place. It unfortunately *is* that simple at present. In 2023 I am no longer capable of shock or charity for citizenry that upon picking up a metaphorical hammer decide to bludgeon themselves and everyone around them in the head with it.
Arrest them all for stupidity, even though it isn’t illegal. Although it’s a sin to tell a lie, it’s not illegal, as everyday proves this truism. If you’re dumb enough to believe you’re getting an electronic trinket for free, you’re a hapless fool. If you’re stupid enough to follow an “influencer”, you deserve the broken nose you got.
“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.”
– Professor Turley
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Wait! President Trump was impeached?
President Trump was impeached by anti-American communists.
Impeachment by communists IS a “Badge of Courage” to be worn proudly by constitutional, peaceful and patriotic, actual Americans in America.
BTW, it’s Filene’s and the Filene’s Basement in Boston is where the annual bride clothing sale occurred. Went to that sale once myself as a male observer and almost got trampled.
The thing I find odd is that Ray Epps was in NYC pointing to where people could get their free stuff and yet he wasn’t charged?? Obvious sarcasm in case Mr. Epps can’t take a joke.
Let’s don’t limit the guy. He’s both!
from ‘Get in their faces’ U.S. Congressional Representative Maxine Waters:
“If nothing does not happen (sic), then we know that we’ve got to not only stay in the street, but we’ve got to fight for justice.”
“Well, we gotta stay on the street…And we’ve got to get more active. We’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”
https://www.factcheck.org/2021/04/in-her-own-words-maxine-waters/
“House Speaker Nancy Pelosi defended Waters, saying her comments were ‘absolutely not’ intended to incite violence. ‘Maxine talked about confrontation in the manner of the civil rights movement,’ Pelosi said.” (same source)
Pelosi was apparently self-qualified to gauge Water’s “intent.”
What’s the difference between “FIGHT” for justice and “FIND” votes?
Is one or the other “determinative?”
Comparing a lowly citizen to the Commander-In-Chief of the most powerful nation on Earth is not the same.
Also the First Amendment is primarily designed as a legal “restraint” limiting the authority of government officials (like Trump).
There is also circumstantial evidence that’s it’s different when Trump says something, unlike citizen speakers. During the January 6 coup attempt, even many federal officials and federal police were confused about jurisdiction, since the Commander-In-Chief was leading the coup attempt.
Beyond legality and constitutionality, a Commander-In-Chief inciting violence and a coup attempt is not qualified to have that authority over us lowly citizens.
Just cause someone posted something on social media, doesn’t mean that you have to show up and riot and loot. The actual perpetrators should be the ones held responsible.
“Hey everyone! I am going to be at such and such place at such and such time, giving away crap for free no one really needs!”
What could go wrong?
“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.” . . .
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.
Two points here. First, recklessness and negligence are separately-defined mental states under NY criminal law (see link below). Second, it seems to me impossible to “urge” anyone to engage in violent conduct recklessly or negligently. The verb to urge means to try earnestly or persistently to persuade (OED). As such, it has to be done intentionally. Also, to the extent there is any doubt about the scope of “urge” in §15.05, it must be construed narrowly to avoid a constitutional violation and per the rule of lenity, which applies in NY State. See, e.g., People v. Golb, 15 N.E.3d 805, 814 (2014).
https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-1-general-provisions/title-b-principles-of-criminal-liability/article-15-culpability/section-1505-culpability-definitions-of-culpable-mental-states
I’m not sure, there’s two pieces of information that I think are material that you’ve left out;
The first is that there weren’t any PS5s that I can see mentioned anywhere, one article said that he showed up with gift cards of relatively low value.
The second was that before he even stepped out of the SUV, he livestreamed to thousands of people, saying that police were tear gassing the crowd, which was not true.
Remember that Cenat got famous for pranking people. I think there’s a possible fact pattern where Cenat literally, by the definitions we accepted more than 4 years ago, both intended to and did literally incite a disturbance that would fit the definition of a riot. Online prank culture goes too far on a daily basis. “It’s just a prank bro” results in charges every other week. Before I get bent out of shape defending Cenat, I think I’ll need to see the fact pattern the prosecution alleges, because with a little imagination and squinting, I can see ways this might be reasonable.
While there have always been fools, our current prog/left inspired culture does not respect the rule of law or even civilized behavior and that is the felony. The true felons are the prog/left who create such a societal situation where respect for the law and decent civil behavior is neither taught at home or in school and civil authorities are hamstrung because of failed ideological ideologies from the prog/left. There is only democrats to blame for 99% of the misery that this nation is suffering and it started back in the 60’s when we told a certain portion of our nation that they were no longer responsible for their own actions but could count on Uncle Sam to ease their way through life. We did this to ourselves and now the question is whether we can undo this – as I can conceive of no way of removing the pernicious elements that have been inculcated within our society and culture short of a purge.
Classified documents in his mar a logo. I am pretty sure those are felony crimes. And while trump is certainly not a republican. He has taken over the Republican Party.
So your talk of rule of law does not apply to trump?
BabyTrump, classified documents in Biden’s unguarded garage. Must be a crime there. Thank you for your even handed approach.
Hey baby, how about documents in his garage, documents in his CHINESE backed “Think” Tank”, documents in his beach house etc etc?
The hypocrisy on the left is just off the charts.
HullBobby,
It is the ‘whataboutism!’ deflection as they are desperate to change the subject.
“in his mar a logo. I am pretty sure those are felony crimes.”
I guess you think he stole those documents. Can you tell us when?
The President has the power, solely and exclusively, to classify, declassify, archive and archive in perpetuity materials generated by and during his term.
The President shall not commit espionage, perfidy or treason.
The legislative branch has no power to usurp the power of the executive branch.
No legislation that usurps the power of the executive branch and provides that power to the legislative branch is constitutional.
No other entity may “claim or exercise” executive power over materials generated by and during a President’s term.
No other entity may “claim or exercise” any power to archive or archive in perpetuity materials generated by and during the term of a President.
__________________________________________________________________________________________________________________
Article 2, Section 1
The executive Power shall be vested in a President of the United States of America.
Were undercover FBI agents in the crowd just prior to the riot breaking out?
Christopher Wray does not know the number of “agents in the crowd” or otherwise degree of clandestine infiltration.
He’s only the Director of the FBI; what could he possibly know?
I meant, how many at the giveaway in New York and which one started *that* kerfuffle?
Sorry. I didn’t mean to rain on your parade. The fact that Jan. 6 was an FBI “counter-intel” op, executed to support the communist government, jumped into my head, such as it is. New York was just another predictable, routine ghetto rampage.
No worries, George. 😊
JT says “I have little sympathy for Cenat and agree that he should be held accountable for the damage.”
And then he says…”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.”
So Cenat should be held responsible for his words, trump should not? Did trump have a permit that allowed marching on and into the Capitol? That is exactly what he told his supporters to do.
Do I think JT has lost his free speech marbles when it comes to trump? you bet. So now the trump sycophants can pile on me for thinking that people that utter words of incitement should be held responsible for said words. It is not I who said he incited the mob. Those arrested at the Capitol building say they were incited to action by trumps words.
Trump never once promised to give away Playstations on January 6th.
Hey Bob, your absolutely right. Go and peacefully march on the capitol were just code words for go and violently riot. You must have gotten your decoder ring out of your box of Fruit Loops.
January 6, 2021 – Donald Trump “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,”
January 6, 2021 – Donald Trump “Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down.”
Again, don’t take my word for the fact he incited the crowd to do violence at the Capitol. Listen to those convicted of crimes at the capitol. They say they did it because trump told them to.
I notice you left out the part where he said, “peacefully.”
Then there is Ray Epps and how many undercover agents?
What about all the intel they had prior to Jan6th? The offer of National Guard troops ignored/turned down?
There were a number of people responsible for the security of the Capital that could of prevented events.
” It is not I who said he incited the mob. Those arrested at the Capitol building say they were incited to action by trumps words.”
Bob, are you too young to remember the words of Flip Wilson?
The Devil made me buy that dress.
“Those arrested at the Capitol building say . . .”
You’re resting your case on those who hear voices. That’s called “auditory hallucination,” a symptom of schizophrenia.
The Left might want to select more credible witnesses.
A civil penalty (and the lawyer fees accrued therewith) will probably punish the clown far more than a few weeks or months in jail, which would likely magnify his street cred and future profits. So in THIS case, hitting him in the wallet is probably the sort of justice that matters.
This would never occurred if Mr. Cenat would have followed the law and filed for a permit 30 day’s prior for the sum of $25. I’m sure authorities would have advised him if he needed insurance, the number of police presence the OT cost, EMT needed and the location of the event, like 25 miles off the Long Island coast.
If Smith succeeds in imposing the “Trump standard,” it will not only affect free speech, but also the freedom to assemble. Since that’s the left’s favorite form of political action, Antifa and BLM had better start revising their tactics. They’ve been getting away with all those “mostly peaceful” riots, but may soon have to tone down the looting and arson a bit.