Judith Barrigas was suing the United States of America, Howard Stern and the Howard Stern Production Company on grounds of unlawful invasion of privacy and negligence, among other things.
That day, I.R.S. agent Jimmy Forsythe called up The Howard Stern Show, presumably to be a guest. He was put on hold. So Forsythe got back to work and spoke to Barrigas, who had a problem with her taxes. When Stern was ready for Forsythe and put him on air, he was in the midst of a conversation with Barrigas.
“Jimmy, go ahead,” said Stern that day. “You’re on the air in Long Island…Jimmy?”
“$71 due on the 20th,” said Forsyth.
“Jimmy, you’re on the f***ing air,” exclaimed Stern.
“What is he doing?” asked Stern’s co-host Robin Quivers. “Making a transaction?”
The I.R.S. agent continued to talk to Judith for several minutes without being aware that Stern, Quivers and their audience were listening in and making fun of what was being said. “It sounds like a raw deal,” said Stern at one point, and when Forsyth finally finished with Barrigas and checked in on his other line, he heard Stern comment, “Dude, we just heard your whole transaction. What’s going on, man? You got the most boring job, dude.”
In response to the lawsuit, the U.S. government argued it had sovereign immunity under the “tax exception” to the Federal Tort Claims Act. Meaning, that it couldn’t be held liable for actions, even wrongful ones, made by a federal government employee while acting within the scope of employment.
A Massachusetts federal judge has ruled that a private call between an I.R.S. agent and taxpayer Judith Barrigas that was broadcast on The Howard Stern Show was somehow related to the collection of taxes and also wasn’t “sufficiently personal or intimate in nature.”
The judge says the disclosed tax information was “imprecise and only roughly identifiable with a particular individual.”
Judith Barrigas’ name, social security number, address and other identifying information weren’t disclosed. Nor did Stern’s audience hear the sound of her voice. The only thing that might possibly identify her was disclosure of her telephone number, which was publicly listed.
The judge concludes, “There may be circumstances in which the publication of tax-related information does constitute an invasion of privacy under Massachusetts law, but for the reasons stated above, the level of the intrusion was significantly diminished here.”