Alyssa Mercante has decided to escalate her personal vendetta against me by sending a cease and desist letter through her "lawyer". This letter accuses me of defamation and harassment, demanding a retraction and apology crafted in their own words. Yeah ok. That sounds super authentic...
The reality is, they are looking desperately for an admission of guilt to gain the upper hand in a brutally bad approach she has taken from the moment I first unfortunately interacted with her as she harassed my wife in an unhinged rant. Frankly, it's laughable how one-sided and selective this legal threat is, leaving out any key details of Alyssa's own conduct, which has been anything but professional... Of course, she's the one at fault for the very same type of accusations she has levied against me here. Wonder if she let her "lawyer" know the full story... and if he even cared.
For those unaware, Alyssa has not only been antagonizing me online but has also repeatedly engaged in provocative behavior, including public challenges to physical fights while at the same time calling herself 'slutty'. This is the same person who has harassed my wife in an attempt to cause a divorce in my personal life, and has gone so far as to try to get me banned from events like San Diego Comic-Con. All the while, she continues to tweet about me and the topics I cover, even though we have each other blocked on Twitter/X... and how does she thank me for responding and defending my family? By threatening a lawsuit via a C&D. Classic.
The letter claims that I made statements that are “factually false,” accusing me of “actual malice,” and suggesting that there is a substantial possibility Alyssa would prevail if this matter were taken to court. What the letter conveniently ignores, however, is Alyssa’s relentless provocations and antagonistic behavior that have been the real cause of any exchanges between us while also taking a threatening demeaning tone about my ability to speak out against their attempt to control the narrative here.
Here’s the full text of the letter for you to read and judge for yourself:
"Your defamation and harassment of our client Alyssa Mercante"
Jeff,
We write to you today as counsel for Alyssa Mercante. You have made unlawfully
harassing and/or defamatory statements about Alyssa. We are writing to request that you voluntarily retract them and publish an apology (the language of which we will suggest to you) before we pursue other legal avenues against you.
I. Your Statements Which are Defamatory to Alyssa
On or around March 30, 2024, you tweeted “‘Whorification’? What’s that? Like what
@alyssa_merc does sucking dicks in her off time for money?” You then repeated the claim on April 1, 2024, tweeting “How do I put this in a way you’d grasp? The Amico was about as much fun as sucking 20 dicks in a row... but instead of being paid for it, I paid 10K to do it” in response to one of Alyssa’s tweets. You then published a video to YouTube on April 4, 2024, in which you stated, “Alyssa Mercante [...] has since come forward stating that she used to be a sex worker, sucking dicks for money before working at Kotaku.” You repeated this statement on YouTube on May 1, 2024, 5 and May 3, 2024, as well as on your website.
Jeff, those statements are factually false, and you knew they were false when you
made them. Alyssa has never “come forward stating” that she has engaged in the conduct you claim. There is a gulf between solo nude modeling and engaging in sexual acts for money, a gulf you were aware of when you made these statements. You did not couch them in terms of possibility, but a definite fact within your knowledge. These statements are not mere insults, trash talk, or rhetorical hyperbole such as would render them protected speech; you clearly intended these statements to be taken as literal fact, and a jury could easily find that a reasonable person of ordinary prudence would interpret them in that light. As you falsely claim Alyssa is the source of this information, it is facially obvious that you made these statements knowing that they were false, as required to find “actual malice” under New York Times v. Sullivan, 376 U.S. 254 (1964). Furthermore, because commenting on Alyssa and her work has proven so lucrative for you, there is incentive for you to continually “up the ante” in your criticisms of her. While you could have left your statements at mere opinion and hyperbole, doing so would eventually lead to flagging esteem from your horde of fans. Therefore, as we have documented, your statements about Alyssa have increased in fervor and falsity, rising from what the First Amendment protects to unprotected speech. And in doing so, you have demonstrated that you will recklessly disregard good taste and the truth in an effort to provide the content that sustains your social media presence. This is the very definition of “actual malice.”
If this matter were taken to court, there is a substantial possibility that Alyssa would
prevail. Your statement constitutes defamation per se under both California law, Cal. Civ. Code § 45a, and New York law, Ward v. Klein, 809 N.Y.S.2d 828, 832 (Sup. Ct. 2005), Conti v. Doe, No. 17-CV-9268 (VEC), 2019 WL 952281, at *7 (S.D.N.Y. Feb. 27, 2019), such that Alyssa would not have to plead special damages for a court to find her claim had merit because your statements both suggest that she has committed a crime, and tend to injure her in her field of work by suggesting that she is unprofessional. In New York, these laws make your statements defamatory per se.
In addition, you clearly have a financial motivation to continue to defame Alyssa;
since you made the first defamatory statement on March 30, 2024, the average number of views on your YouTube videos have gone from one or two thousand to tens or even hundreds of thousands of views each. Courts have found that where a defendant has profited from the defamation, awards of punitive damages are appropriate, Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 190–91 (2d Cir. 2000). If this matter cannot be resolved amicably and Alyssa is forced to proceed with litigation against you, we will not hesitate to seek punitive damages from you.
We therefore demand that you remove all statements to the effect that Alyssa has
“sucked dicks for money” or otherwise engaged in acts of sexual contact for any kind of
compensation or advantage, as well as issue a retraction and apology on every platform and in every medium where the original statement was published, including any not named in this letter, within thirty days of the receipt of this letter. The retraction and apology must be of equal prominence and receive equal promotion as the original defamatory statements, to the best of your ability. We suggest that your retraction include the statement, “It was wrong of me to suggest Alyssa Mercante has engaged in sexual contact for money. I let my rhetoric get away from me, and I did so hoping to inflame you, my audience. I apologize for spreading lies about Alyssa, and for doing so to manipulate you, my viewers.” You may catalog and document these retractions and apologies to us via email at lhaygood@kusklaw.com, mdunford@kusklaw.com, and ktewson@kusklaw.com. Failure to do so will result in Alyssa seeking enforcement of her rights in court. Whether or not we agree that using a person’s full name in a public posting is deliberately inciting harassment, you clearly believe that it is incitement, and that a person who engages in such a course of conduct must be held accountable – if not by that person’s employers, then by the community at large. Not only have you used Alyssa’s full name hundreds of times, you have encouraged your viewers to hold her “accountable,” posted dozens of pictures of her, and even linked to the thread on Kiwi Farms which hosts her full “dox.” And, because you yourself have stated that even just using someone’s full name could lead to harassment, intimidation, and the pursuit of vendettas, it is clear that you made your statements with the intent to place the target of the harassment in reasonable fear for her safety or the safety of her family, Cal. Penal Code § 646.9(g). There is simply no other intent with which you could utter these words except to hope that you could bully Alyssa into silence and off the Internet.
You accuse Alyssa of trying to “silence” her critics, but routinely encourage behavior
that would lead to her not having a voice in the marketplace of ideas. This is ironic, given that Alyssa’s prominence and reach as a journalist is what has propelled your own career forward. As stated previously, a more cautious and judicious person would have confined his commentary on the subject to opinion, even perhaps vociferous and vulgar disagreement with Alyssa, but away from these sorts of highly dramatic actions that constitute defamation and harassment. As you yourself stated, “the Internet is ruthless.” However you feel about our attempts to dissuade Kiwi Farms from pursuing its own misguided course of action, let us be clear: any attempt by you to use this communication to drum up sympathy for yourself or to continue to harass Alyssa by exposing her to the “ruthlessness” of your audience, any statements by you that she should feel the “consequences” of trying to “silence” you will be taken as intentional attempts to inflict emotional distress upon Alyssa and could expose you to further legal liability.
Jeff, we are not asking that you never comment about Alyssa again. We are not
asking that you never say mean things about her, or that you never react negatively to
something she writes or a tweet she makes or comment pejoratively about her. We are
asking that you confine such activities to the right side of the law. That is not meant to
“silence” you; it is meant to keep us from having to take you to court for the damages you cause. We are giving you an exit ramp; prudence counsels you take it.
To that end, we are requesting that in the same retraction and apology messages on
your social media platforms contemplated above, you tell your listeners to tone down the rhetoric, and avoid conduct and actions that directly target her. By all means, you and your followers should publish videos, blogs, tweets, and every form of media message out there disagreeing with Alyssa and anything she writes. But do not direct that conduct at her; no harassing direct messages, no linking to private information, and certainly no encouraging others to take actions that reasonably make her feel threatened, harassed, alarmed, or abused by your conduct.
In conclusion, this matter ends if you publish your retraction and apology as stated
above, containing all of the information we have requested here, and you promise to confine your future commentary on Alyssa to the strictly non-defamatory and non-harassing. If you do so, this matter ends here, and we need not trouble each other anymore. If, on the other hand, you continue your flippancy and disregard of our more than reasonable requests, you will find out that there are legal consequences to saying unlawful things on the Internet. We will pursue all legal remedies against you, from protective orders, injunctions, and lawsuits for defamation, harassment, invasion of privacy, intentional infliction of emotional distress, and other torts in courts of competent jurisdiction.
Once you have published your retractions, please send links to them to the following
email address so that we may review them: ktewson@kusklaw.com,
mdunford@kusklaw.com, and lhaygood@kusklaw.com. If you are sincere, and if your
apologies and retractions meet the standards set out in this email, we will send you another letter acknowledging the receipt, and sufficiency, of the same. If they are not, we will give you one additional chance before we determine that your efforts at staving off future consequences are insincere and begin plans for filing suit.
Jeff, you are a family man yourself. Imagine your family in this situation. What would you want to happen? With a little empathy, you can settle this fracas and we can all move on with our lives. It’s time you made the smart choice, for once. Do the right thing.
Warmest Regards,
/s/ Lane A. Haygood
Lane A. Haygood
(432) 703-4822
NY Bar # 6119135
TX Bar #24066670
WSBA # 59723
/s/ Michael D. Dunford
Michael D. Dunford, Ph.D.
(808) 778-4081
HI Bar # 010436
Alyssa’s attempt to weaponize the legal system is not only misguided but also reveals a deeper fear of facing the consequences of her own actions.
She seems to think that by sending a cease and desist, she can avoid accountability for the constant antagonism and harassment she has directed toward me and my family.
If Alyssa wants to avoid criticism, perhaps she should consider re-evaluating her own behavior online. I will be following up with a more detailed rebuttal and will provide a thorough response to her lawyer’s baseless accusations.
If her team insists on continuing this pointless endeavor, I am prepared to obtain legal counsel and pursue a full counterclaim.
I am in process of having an official response prepared.
You don't scare me, Alyssa. You're pathetic, and you continue to remind everyone why you always will be.
~Smash
I'm donating to her legal fund. Hope she takes your wife and kids too!
I'm not a legal expert by any means, but...DAFUQ did I just read? Sounds more like an offended Tumblr rant than a legitimate C&D.
Is her lawyer conveniently over looking all the tweets she's made harassing other people aside from you and the harassment she's made to your wife. She's got no case
"...to be taken as literal fact, and a jury could easily find that a reasonable person of ordinary prudence would interpret them in that light."
First time on the internet, counselor?