Oh Honey, Are You Sure You Want To Send This Takedown Demand To Your Wonkette?

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Dear Wonkette and Substack Legal Department,

Cyber Law Firm, PLLC represents Mr. David Schwartz (“Mr. Schwartz” or “our client”).

Mr. Schwartz is the target of a false, defamatory, and harmful article on Wonkette. The article is reputationally damaging to Mr. Schwartz, and violates Substack’s Publisher Agreement. We request that you remove this article from your platform.
The offending content can be accessed at the following URLs:• https://www.wonkette.com/p/michael-cohens-lawyer-david-schwartz-actually-worse-at-this-than-michael-cohen

The false and reputationally damaging article about Mr. Schwartz violates the protections that are provided in Substack’s Publisher Agreement (“PA”). Specifically, the PA provide that users may not: “[post] or otherwise use Substack in a manner that: is fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, or in any way violates Substack’s Content Guidelines”1 and the Content Guidelines say “Please...don’t infringe on their privacy or any other legal rights. Don’t publish anything that violates laws or regulations.”2

Kindly remove the post from your platform within the next 30 days, establish protocols to ensure it does not get re-posted, and send us confirmation once it has been removed. Thank you.

Sincerely,
/s/ Star Kashman, Esq.
Star Kashman, Esq.
Founding Partner
Cyber Law Firm, PLLC
Attorney to David Schwartz

Dear Ms. Kashman:

Thank you for your email of July 22 regarding the allegedly “false, defamatory, and harmful article on Wonkette” about your client, David Schwartz. It was a most welcome diversion during a frankly exhausting news week. However, it is not our habit at this little Mommyblog to respond to performative dickwagging masquerading as a cease and desist letter. (See “In The Matter Of Diamond And Silk's Very Real Lawyer v. Wonkette: Bring It, Sh*thead.”) And so we will not be complying with your request to remove the post for the reasons stated below.

Background

The article in question, published on March 29, 2018, and entitled “Michael Cohen's Lawyer David Schwartz Actually Worse At This Than Michael Cohen,” featured several actual quotes from your client, who was then counsel to former Trump lawyer Michael Cohen. At the time, Mr. Cohen was publicly claiming to have entered into the hush money agreement with Stormy Daniels without the knowledge of his own client, Donald Trump.

“The president was not aware of the agreement. At least Michael Cohen never told him about the agreement, I can tell you that,” he assured CNN’s Erin Burnett on March 28, 2018.

If true, this would have been a violation of New York’s Rules of Professional Conduct, particularly Rule 1.4 which requires an attorney to “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent … is required by these Rules.” But of course it was not true.

Shortly thereafter, Mr. Cohen pled guilty to making an illegal campaign finance violation, and testified that he had entered into the hush money agreement at the behest of “Individual 1,” AKA Donald Trump. Indeed, he repeated that testimony under oath, most recently in May, at the former president’s criminal trial in Manhattan, which led to 34 convictions for creating a false business record to cover up the payment.

Mr. Schwartz went on to insist that it was ridiculous to suggest that Mr. Cohen would have sent someone to threaten Ms. Daniels.

“He never ordered a threat. He doesn't do that,” said Mr. Schwartz, who was then representing Mr. Cohen. “Because he does it to someone’s face.”

Noting that Mr. Schwartz seemed to be conceding that his own client was in the business of accosting random women and threatening physical violence, we wrote, “We really didn't think there was a lawyer stupider than Michael Cohen. Turns out we were wrong!” And then we repeated the Yiddish aphorism, “If he were twice as smart, he’d be an idiot.” Although, in light of your recent communication, we might have to revisit the math on that one.

Defamation

Your letter does not specify which statements are “false” or “defamatory” in the article, presumably because there are none. Quoting someone verbatim and then accusing him of “disgracing the legal profession” is a protected expression of opinion. And your client, who went on national television to discuss a pending criminal case, was clearly a public figure for the purposes of the Sullivan standard.

But even if the article did contain defamatory statements, any action would be time-barred.

Mr. Schwartz appears to be a resident of New York, and, as a member of the bar for almost a year now, you must be aware that the statute of limitations for libel in New York is one year. (See CPLR § 215(3).) In 2018 when the article was published, Ms. Dye, who wrote the piece, lived in Maryland, which also has a one-year SOL. Wonkette was domiciled in Montana, which allows two years to file an action for defamation. But since the article in question was published more than six years ago, the time to pursue Mr. Schwartz’s non-existent claim has long since passed. Linear time — it’s tricky!

Terms of Service

As for your demand to speak to the manager of Subtack, we would simply note, Karen, that neither the platform’s Publisher’s Agreement nor its Content Guidelines create a private right of action for third parties. And as you have failed to specify which statements in the article are “fraudulent, deceptive, threatening, abusive, harassing, tortious, [or] defamatory,” we will not be issuing any corrections, either.

Because saying mean words on the internet is not illegal. In fact, it is our job, and we think it’s pretty important.

So, if your client is interested in preventing reputational harm, perhaps he should refrain from saying abjectly foolish things on national television. Barring that, he could stop reminding people about those moronic utterances years after the fact, when absolutely no one remembers who he is. (See: Streisand Effect.)

In conclusion, the “offending” post will stay up.

Very truly yours,

Rebecca Schoenkopf and Liz Dye

P.S. Google is free. And you could have avoided this entire embarrassing exercise by using it.