Kai Cenat is a Fool, Not a Felon

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.

47 thoughts on “Kai Cenat is a Fool, Not a Felon”

  1. One of the problems I have with many of your posts is that you are doubly wrong in your form of expression.

    One of Orwell’s directions to writers was to state something plainly and not hedge with – “my view is” , or “my opinion is”.
    If a statement is one of opinion then OBVIOUSLY it is YOUR oppinion – you need not weaken it by suprefluous words.

    But all such statements are NOT opinions.

    It may be your view that Jack smith is wrong and that the criminal Prosectution of Cenat is wrong.

    It is also a FACT.

    Our law did not evolve to that point by accident. Out law remains evolving and imperfect.
    But the millenia long trend is to hone in on what is logically., morally and practically correct.

    It is not just an opinion that Cenat’s remarks can not be criminalized. It is a FACT – because doing so makes it far to easy to criminalize conduct that should not be criminalized.

    Our law strives to evolve towards what works.

    There was – as is now obvious to nearly all plenty of basis for Trump to ask Zelensky for an investigation of the Bidens.
    There never was a basis for the crossfire huricane investigation.

    The assorted current Trump prosecutions range from having no grounds even for an investigation to falling far short of what is necescary for prosecution.

    Those are NOT mere opinions – whether I says them or you do.
    They are facts – because allowing investigations where there is no basis – and thwarting them when there is.
    Because indicting and prosecuting when there is no actual crime harms us all.

    There is no legal, moral or constitutional impediment to prosecuting a political rival.
    Trump was free to seek the investigation fo the Biden’s.

    I do not personally have a problem with Biden in the Whitehouse ranting “will no one rid me of this troublesome man”

    The problem occurs when government excercises power without the requires constitutional criteria.
    It is not asking for an investigation that is corrupt. It is actually opening one without the constitutional foundation to do so.
    Where the foundation exists it is not the investigation that is corrupt – but the indictment and prosecution when no crime has been committed.

    We are each free to hold our own opinions regard the words and conduct of Cenat, or Trump or Biden.
    But whether investigations or prosecutions occur must be determined by the FACTS.
    And Facts are not opinions. Disregarding them results in actual harm to us all.

  2. 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.

    Of course not. But you’ve just proved too much. You say that Cenat should be held civilly liable for the damage caused by the riot. Suppose it were Taylor Swift, and she did nothing but let it be known that she would be appearing; should she be held liable for any damage that results?! Would you seriously argue that she should be legally required to keep all her appearances secret, and that merely for letting people know where she would be she should incur unlimited liability?! That doesn’t seem right to me. Liability should rest only on those who actually do something wrong, and it seems to me that neither Swift in that hypothetical, nor Cenat in the real story, qualify.

  3. “Feline’s Basement” 🙂

    Someone involved in producing this column has autocorrect turned on, and doesn’t proofread. Autocorrect is evil, and proofreading is vital. This is what happens when you ignore that.

  4. If Russia is afraid to fight NATO, then NATO should not be afraid to fight Russia, putting a quick end to the war, like a pride of lions chasing away a pack of hyenas.

    1. Any sane person should have a healthy degree of fear of war.
      If you are so gun ho to fight, why are you not down at the recruitment center enlisting in a combat MOS? If not you, your children or grand children.

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