Howard Stern Sued for Airing Taxpayer Conversation with IRS Agent

Radio HostPopular “shock jock” Howard Stern earns a living by being outrageous, but Judith Barrigas says he crossed the line when, without her knowledge or consent, he aired a conversation that she was having with an IRS agent about her tax refund.

Barrigas is suing Stern and his producer for invasion of privacy. She’s also suing the government because an IRS employee’s call to The Howard Stern Show resulted in her private tax information being aired on Sirius XM.

Barrigas’ Complaint

According to her complaint, Barrigas called an IRS Service Center on May 19, 2015. She had been expecting to receive a tax refund and wondered why the IRS had applied it to a tax debt that she had already agreed to pay in monthly installments.

Barrigas was connected to IRS Agent Jimmy Forsythe. During their 45-minute conversation, Barrigas provided her telephone number and discussed the amount of her tax refund and the details of her payment plan.

Barrigas did not realize that Forsythe had called The Howard Stern Show. He took Barrigas’ call after Stern’s producers placed his call on hold.

Due to an apparent mishap, the nature of which is unclear, the producers were able to hear Forsythe’s discussion with Barrigas. They decided to put it on the air.

Barrigas realized something was wrong when some of Stern’s 1.2 million listeners called or texted her on the number she provided to Forsythe. The listeners told her that they were listening to her private conversation with the IRS which, thanks to Stern’s producers, was no longer private. The complaint alleges that some of the messages were “harassing in nature.”

Stern, apparently realizing that neither Barrigas nor Forsythe were aware that he had access to their conversation, joked about her tax debt. Barrigas alleges that she was humiliated by the public discussion of her private tax matters. She also alleges that the Stern Show placed her call on its website for several weeks.

The complaint also alleges that the IRS was unresponsive to her concerns until she contacted the media. At that point, Forsythe was placed on an administrative leave, presumably because IRS agents are supposed to be doing their jobs, not calling The Howard Stern Show.

Barrigas blames the public disclosure of her private conversation for a number of problems that she subsequently experienced, including inability to find employment, a sleep disturbance, and irregular eating patterns.

Barrigas sued the United States government for the reckless or negligent conduct of Forsythe that allegedly caused Barrigas’ private conversation to be broadcast on Stern’s show. She also sued the government for unlawfully disclosing information about her tax filings.

Barrigas sued Howard Stern and his production company for negligence, invasion of privacy, and intentional infliction of emotional distress in broadcasting her private conversation and for continuing to broadcast it after they should have realized it was not Barrigas’ intent to disclose her private information to the general public.

Does Barrigas’ Lawsuit Have Merit?

As the Hollywood Reporter notes, Donald Trump threatened to sue the New York Times for disclosing that he reported a $916 million loss on his 1995 income tax returns. Trump has not made good on that threat and, given that he is a public figure who does not dispute the truth of the report, it is doubtful that he could succeed in that claim.

Barrigas’ case is different. She is not a public figure and she had no knowledge that her conversation was being broadcast in a public forum. While the Supreme Court has granted First Amendment protection to news organizations that report private but newsworthy information, Stern continued to broadcast Barrigas’ conversation even after it became clear that she was discussing a private problem that wasn’t particularly newsworthy.

On the other hand, Stern did not initiate the call. He regularly takes calls from listeners and this was, after all, a call from a listener, even if the listener didn’t realize he was on the air. It will be interesting to see how a court decides the issue of Stern’s liability.

The case against the government also has potential merit, although whether Barrigas can succeed on each claim might depend on how her conversation with Forsythe came to be broadcast on Stern’s show. Forsythe intended to call Stern but it is unlikely that he intended to allow Stern to listen to Barrigas’ call. It might therefore be difficult to hold the government responsible for intentionally disclosing Barrigas’ private information. If, however, Forsythe carelessly pushed a button to join the two calls as a conference call, he (and by extension, the government) might have been guilty of negligence.

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