From Judge Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin:
In this action, plaintiff, Erik Garlington, brings claims for defamation … against defendants Nicole Austin (his former spouse) and Mark Burstiner. Plaintiff, a musician [see this Rolling Stone story -EV], alleges that defendants made defamatory statements that accuse plaintiff of criminal conduct, including rape, sexual assault, grooming minors, sex trafficking, serial killing, and felonies.
Plaintiff asserts that defendants created a website titled "Known Rapist Erik Garlington" and posted allegedly defamatory statements on social media platforms like YouTube (a six-hour video). Plaintiff further alleges that defendants repeated the statements to colleagues, employers, and the press. { Plaintiff points to a fake website defendants created, defendant's six-hour YouTube video, social-media posts, and direct emails to festival organizers and industry contacts that have caused ongoing reputational and economic harm.} Plaintiff represents that defendants "posted his home address online and left taunting messages promising violence," causing him to fear for his and his partner's safety. Plaintiff asserts that the statements harmed his reputation and his professional activities as a musician….
Speech may be enjoined when it (1) "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks omitted]); (2) is "considered part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose"; or (3) risks harm to recognized personal or business reputation or privacy (see Dennis v Napoli(N.Y. App. Div. 2009) [holding that communications that "cause injury to plaintiff's "reputation, jeopardize her employment, and otherwise unnecessarily intrude upon her right to privacy" are not constitutionally protected]; Bingham v Struve (N.Y. App. Div. 1992))….
Plaintiff is a private figure. His public presence is confined to his artistic work as a singer and guitarist. Nothing before the court suggests that he has sought publicity beyond that narrow music-industry sphere. The challenged statements, however, do not concern his music career. Accusations that he is a rapist, a felon, or a serial killer, or that he groomed minors, sexually trafficked his partner, or engaged in other violent or predatory conduct, bear no demonstrated connection to the subject on which he has sought any public attention.
