Lawsuit UPDATE: Alyssa Mercante Desperation Shows in Second Amended Complaint

Alyssa Mercante and her team of lawyers have filed a second amended complaint (alongside some 'examples of harassment' that have literally nothing at all to do with me) in her seemingly unending litigation. If anything... it's clear from the new filing that the case is growing weaker by the second.

Filing one amended complaint can be typical in cases for clarifications. Filing a second? Nah... While it happens, I'll just speak for myself when I say... it starts to raise eyebrows. It can often signal that the plaintiff is struggling to meet any basic legal standards, especially when facing a competent defense. In this case, that defense comes from my lawyer, Ron Coleman, a well-known First Amendment attorney who already hit Mercante’s initial claims with a powerful motion to dismiss. Now, with this latest filing - it appears to be a direct reaction to that very pressure, stuffed full with ideological framing, added specificity, and attempts to patch the original weaknesses. IMHO it fails miserably, but hey, I'm no lawyer.

One of her examples provided as "harassment"...

One of the major updates in the second amended complaint is a more detailed claim of “stochastic terror.” Mercante now alleges that my commentary encouraged an online mob to harass her, even though she fails to provide the most important thing to reinforce this narrative: ANY real evidence of that direct incitement. The idea that public criticism constitutes terrorism is not just a stretch, like most of what she's doing here, it’s a dangerous precedent to try to set. Courts have consistently protected criticism and harsh opinion under the First Amendment over the years, especially when the subject is a public figure, which let's be honest here - Mercante undeniably is.

The updated complaint now also adds more defamation allegations, and she's citing specific quotes and videos where I've criticized her reporting and public statements. Mercante argues that these comments damaged her reputation and employment prospects... going so far as to claim that Kotaku had asked her to resign due to the backlash my videos in particular generated. But even if that was true, that doesn't make my videos unlawful. In fact, that's what everything feels like to me when going through this. Much of it, even if proven to be true (which I would push back on, but hear me out here), isn't illegal. Criticism of a journalist’s work, even strong, biting criticism, is - get this - constitutionally protected speech. Trying to reframe opinion as “knowingly false statements” is a weak attempt to sidestep that reality.

Mercante then goes on to expand more of her claims of emotional distress as well, alleging that she now suffers severe mental anguish as a result of online commentary. But... here again, the burden of proof is steep. Courts require clear, precise, and documented evidence of medical or psychological harm, and there’s no indication that this complaint includes that level of substantiation. Also, many people have been covering Alyssa's journalism over the years. How I am being singled out here above all else is questionable and speculative desperation, at best.

Mercante also accuses me of (because of course they'd go here) exploiting YouTube’s monetization system and algorithm to amplify negative content about her for personal gain. This argument is novel, but legally weak. YouTube’s algorithm is driven by engagement and viewer interest, not creator intent. Unless there’s some sort of actual evidence of malicious manipulation, this is little more than an observation about how the platform functions. Again, nothing different than pretty much any other creator. Taking offense to one person in the sea of creators doesn't make you special.

She also goes into mentioning the YouTube channel Nobody upwards of 75 times throughout the filing. Nobody is a smaller channel in the grand scheme at this point in time, and some wild leaps of association between him and I are made, trying to create a narrative that doesn't even exist. Again, more of the same.

Perhaps the most revealing part of the new complaint that I noticed was how heavily it leans into political rhetoric. Mercante desperately tries to tie me to what she's continually calling a supposed “alt-right media ecosystem” and she describes my criticism as part of a “Gamergate 2.0” style campaign. This is another transparent attempt to make the case about ideology rather than law. Not to mention they dive into that when covering the Kotaku Detected portion of SmashJT.com as well.

But courts don’t deal in buzzwords, as much as activist lawyers may want them to. They deal in facts, evidence, and legal standards. Branding your critic as “alt-right” doesn’t make your case stronger; I'd argue to opposite - it makes it look even more desperate.

Mercante also makes another play for jurisdiction in New York, with the pretty big STRETCH of arguing that this website here is hosted on Wix, which has offices in New York... This is clearly a last-ditch attempt to salvage venue, but courts typically would require more direct business connections to the state than simply using a third-party platform. If this was accepted for jurisdiction, it would be a wild change of course for how courts have handled jurisdiction matters historically. Her lawyers SHOULD know this, but maybe they don't... or more likely, they're beyond desperate to get this case accepted.

Despite the added length and emotion of this new filing (now 89 pages long YIKES what!?), the fundamental weaknesses in Mercante’s lawsuit remain exactly the same. Nothing has changed in my eyes. There's still no clear evidence of any incitement, no proof of actual malice, and no way to transform criticism into actionable defamation just because it was uncomfortable. Her attempt to escalate the case into a larger cultural narrative, complete with hashtags, political language, and references to broader media “ecosystems”... at the end of the day, only further highlights how far removed this lawsuit really is from any solid legal ground.

Ron Coleman has since filed another motion to dismiss, and I will cover that in more detail in the future. New York’s anti-SLAPP laws are involved in that motion. If the court finds this amended complaint to be yet another attempt to silence public commentary, Mercante could potentially be ordered to pay legal fees, which again, is a major risk for Alyssa Mercante, who’s now had rewritten her case TWO times...

The longer this drags on, the more it could end up costing whoever is required to pay.

In the end, this lawsuit increasingly looks like what it is: a completely flimsy, ideology-fueled attempt to punish a critic, dressed up as a legal claim. Mercante’s second amended complaint may add a crap ton of pages, but that doesn't mean it adds strength. And the more she rewrites it, the clearer it becomes to everyone, her is a case built on sand.

~Smash