N.Y. Court Blocks Rape Accusers from Repeating Their Allegedly False Accusations

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.

At this stage, there is no evidence that plaintiff has spoken publicly about, invited scrutiny of, or otherwise thrust himself into public debate concerning criminality, mental-health conditions, or intimate-partner behavior—topics wholly distinct from the field in which he has any arguable public presence. {A small subset of statements arguably touches plaintiff’s musical career—such as claims that he “stole songs,” that “a colleague in the music industry, Bartees Strange, [did not] okay a lyric referencing him,” or that “his band was dropped by all representation.” Those statements fall within the limited sphere in which plaintiff has sought publicity—the music industry. The court therefore declines to impose an injunction against statements of that nature.} Accordingly, plaintiff need not show that defendants acted with actual malice when making their statements to be successful on his defamation claim.

Plaintiff alleges that defendants published false statements accusing him of rape, sexual assault, grooming minors, murder, and trafficking. He submits screenshots of defendants’ posts, emails, and social-media communications containing these accusations, as well as the website titled “Known Rapist Erik Garlington.” He also provides emails that defendant Mark Burstiner allegedly sent to music-festival organizers and professional contacts repeating the accusations and urging them to cut ties with him. Plaintiff alleges that the statements are false and have caused reputational and professional harm.

Defendants argue that the statements are substantially true. However, the materials they submit—largely private communications and narrative exchanges—do not provide legitimate evidentiary basis supporting the criminal accusations. Courts have rejected similar attempts to justify serious criminal allegations with uncorroborated or unsupported assertions. (See Bingham.)

Plaintiff has demonstrated a likelihood of success on the merits of his defamation per se claim….

{On this record, plaintiff has shown that continued direct contact with his personal and professional network would inflict irreparable injury.} The record reflects that defendants directed, through emails and other direct communications, their accusations of rape, murder, sexual assault, grooming minors, and trafficking to plaintiff’s professional contacts and colleagues. Plaintiff also attests that defendants contacted his family and friends with similar accusations and posted his home address online—highly intrusive conduct. In addition, Burstiner’s messages to plaintiff’s professional acquaintances asking whether they intended to cut ties with him demonstrate a deliberate effort to interfere with plaintiff’s professional relationships and livelihood. Courts have recognized that targeted outreach to third parties with serious, unverified accusations causes reputational, professional, and emotional harm that cannot be remedied by money damages…..

The balance of equities tips in plaintiff’s favor. The harm he might suffer due to the promulgation of criminal accusations against him outweighs any injury defendants might incur due to the injunction. Moreover, the relief plaintiff seeks on this motion is limited. Plaintiff does not seek removal of defendants’ website or other existing public postings …. He seeks “a preliminary injunction against further defamatory actions or statements by defendants of and concerning the plaintiff, during the pendency of this action.”

Defendants are therefore enjoined from directly contacting plaintiff’s professional contacts, colleagues, family, or friends by email, message, telephone, or other direct communication and from publishing or posting statements which falsely accuse plaintiff of rape; grooming or abusing minors; engaging in nonconsensual sexual conduct or sex trafficking; being a felon; being a serial killer; or having killed or caused the death of another person….

I argued in my  2019 Penn. L. Rev. Anti-Libel Injunctionsarticle that (1) permanent injunctions barring the repetition of statements found to be libelous, entered after a judgment on the merits—generally a jury trial, unless the defendant agrees to a bench trial or fails to appear—are constitutional, but (2) preliminary injunctions, entered prior to any judgment on the merits, are generally unconstitutional prior restraints, and (3) injunctions in any event can’t categorically ban all direct contacts with plaintiff’s professional contacts, colleagues, family, or friends, as this injunction purports to do. Many cases so hold, as to all of these propositions. But a few cases have indeed allowed preliminary injunctions limited to statements that are tentatively found to be libelous, including in New York. (Query whether the “publishing or posting statements” part of this particular injunction is justified because it is limited to statements which “falsely accuse plaintiff”; I suggest in my article that this might make a preliminary anti-libel injunction justifiable, since a defendant couldn’t be punished for violating the injunction unless at the contempt hearing it is proved that the statements are indeed false, though much depends on the details of how the injunction would be enforced.)

The court also refused to grant defendants’ motion seeking an injunction against the plaintiff:

The branch of defendants’ motion to enjoin plaintiff from threatening or harassing defendants; [and] mobilizing third part[ies] to do …. The record contains no evidence of any true threats. The cited statements—that “a million people from here to Japan will know your names and faces”—are rhetorical commentary, not threats of unlawful conduct. The references to “harassment,” “mobilization,” and “harm” rest on speculative interpretations of online speech, not on any imminent or concrete danger….

Defendants also seek orders requiring the removal of publications and enjoining plaintiff from posting about defendants on social media (items 7 and 8). They seek removal of plaintiff’s May 21, 2025, Instagram post of rap lyrics: “He gon’ end up murdered, he gon’ end up dead” and “Every time I get a new bag, put it on a opp head.” Defendants provide insufficient context to construe plaintiff’s posting of those lyrics as a threat toward them. That plaintiff posted the lyrics the night before a court appearance is insufficient without more.

Defendants also seek to prohibit plaintiff from “mobilizing third parties” as shown by his statement that “a million people, from here to Japan, know your names, faces” (item 9). Read within the context of the email in which it originates, however, that statement does not sound in threats, imminent harm, or defamation….

The branch of defendants’ motion to enjoying “[p]laintiff from surveillance or monitoring of Counterclaimants’ activities, including but not limited to making statements about their physical reactions or presence at locations” (item 10) is denied. Defendants provide no evidence of surveillance. Plaintiff’s message to Burstiner that “I heard your hands were TREMBLING when you though I was at your house” is mere hyperbole….

Richard A. Altman represents plaintiff.