To be honest, I never heard the name Kai Cenat before the Union Square riot. To be honest, I’m not really up to date on most social media “influencers,” a weird characterization for people who amass a huge following for no particular reason. He’s on a platform called “Twitch,” and I’m not. So when he told his followers to show up at Union Square Park, they showed because he’s an “influencer.”

“We’re going to be going crazy,” Mr. Cenat, a social media superstar who has become known for his marathon streaming sessions, said during a Wednesday broadcast on the social media platform Twitch. He announced a gathering in Union Square to tens of thousands of viewers. All his New York people needed to be there, he said.

He encouraged the audience to arrive on time, adding that the event “might end really quick, depending on how rowdy” it got.

It got rowdy. Two days later, thousands of young people showed up in Union Square, some of them jumping on cars and vans, many with their phones out and filming. The crowd chanted obscenities, threw soda cans and trash at the police, and set off fireworks and car alarms. Mr. Cenat was arrested — along with at least 65 other people — and charged by the police with inciting a riot. Nearly half of those arrested were under 18.

It was not just rowdy. It was a riot.

There hasn’t been much George Washington law prof Jon Turley has had to say lately that I agree with, but he’s right about this: Cenat is a fool, not a felon.

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.

Despite his huge following, and their belief that they should be influenced by Cenat, he’s a kid. And like most kids, lacks the maturity and grasp to appreciate the consequence of his actions. It was certainly not in his interest to have a riot arise when he was flexing his influencer muscles. He didn’t get a permit, or bother to tell the cops of his plans, but then he had no clue that he should have. Kids don’t know about such things. Kids don’t think about such things. Even kids who are influencers.

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.

Unlike Turley, I have some sympathy for Cenat. He didn’t ask for, cause or engage in acts of wanton destruction. His crime wasn’t being negligent, but being a dumb kid with no thought of the consequences of his actions. This makes him pretty much the same as any other kid, albeit one who could get thousands of other dumb kids to show up with only a word. Is that a crime?

Cenat is charged with inciting a riot under New York Penal Law § 240.08.
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.

Inciting to riot is a class A misdemeanor.

There were more than ten persons there. They engaged in “tumultuous and violent conduct” for sure. And it was likely to create public alarm.  But Cenat didn’t “urge” anyone to do anything other than show up and maybe get something called a “playstation 5.” Was that enough to make Cenat culpable for what happened?

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.

Whether that’s the argument to be proffered by prosecutors as to Cenat’s mens rea is unclear. Turley seems to accept that Cenat was reckless, but to be reckless under New York law, one has to appreciate the consequences of one’s actions in advance and proceed despite them.

“Recklessly.” A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk
that such result will occur or that such circumstance exists. The risk
must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person
would observe in the situation.

Cenat wasn’t aware of the consequences of his misguided call for his fans to come down to Union Square Part to get a free game console. In his childish imagination, they surrounded him with love and adoration and sang odes of joy to his beneficence. And if he wasn’t aware of it, he couldn’t possibly consciously disregard it.

But the real problem here is that something bad happened, a riot, and damage was done, so someone has to be responsible. Someone has to pay. And if there is no other, better, someone to nail for this riot, then why not the dumb kid who mindlessly told a couple million kids with underdeveloped sense of responsibility and overdeveloped senses of narcissism to show up and, well, get “crazy”?

As Turley says, Cenat was a fool but not a felon. Of course, inciting a riot is a misdemeanor, but that would have blown the alliteration. And whether felon or misdemeanant, Cenat was still nothing more than a dumb kid with no appreciation of the undeserved influence he wields and the damage it can cause.