Dissenting:
I would affirm the judgment of the district court; and, therefore, I respectfully dissent. I agree with the opinion except for the discussion in Part II and Part IV-B and the conclusion in Part V.
I.
INVASION OF PRIVACY
The district court dismissed the invasion of privacy claim that was based on a violation of the California Penal Code. The majority holds this to be error. I disagree, and the reason succinctly stated is as follows. The civil invasion of privacy claim is based upon the alleged violation of a criminal statute. The plain language of the statute provides an exemption for police officers acting within the scope of their authority to record communications they could have recorded prior to the enactment of the statute. The exemption applies to the facts of this case. Under the plain language of the statute, the officers could not be found guilty of a crime and, thus, there can be no civil remedy against them.
Chapter 1.5 of the California Penal Code provides that certain acts of wiretapping and eavesdropping on or recording of confidential communications are criminal violations punishable by imprisonment not exceeding one year, or a fíne not exceeding two thousand five hundred dollars ($2,500), or both. Section 637.2 of the chapter provides:
(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:
(1) Five thousand dollars ($5,000).
(2) Three times the amount of actual damages, if any, sustained by the plaintiff.
(b) Any person may, in accordance with the provisions of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).
(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.
CaLPenal Code § 637.2 (Supp.1994).
Thus, a person who violates the provisions of Chapter 1.5 is subject to both civil and criminal liability. In interpreting the meaning of the provisions of the chapter, we must keep in mind that we are interpreting a criminal statute that provides for criminal punishment for the offender and in addition provides a civil remedy to the victim. Such a statute cannot have one meaning for criminal enforcement and another for civil liability. The same conduct is prohibited for both purposes.
Rattray’s claim is based on a violation of section 632 of Chapter 1.5, which criminalizes the unconsented recording of confidential communications. However, section 633 of that chapter provides in pertinent part:
*803Nothing in Section ... 632 ... prohibits ... any chief of police, assistant chief of police, or policeman of a city ..., or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter.
CahPenal Code § 633 (Supp.1994).
It is clear that the police could lawfully overhear or record a communication, such as the one here in issue, prior to the effective date of the chapter. This case involves the recording of a conversation between two persons by one of them without the consent of the other. The district court specifically asked the plaintiff to provide any authority that such activity was unlawful prior to the effective date of the chapter. The plaintiff was unable to do so and this resulted in the district court dismissing this claim. On appeal, the plaintiff now cites the former California Penal Code § 653(h) as authority, which the majority seizes upon to justify its holding. Section 653(h) had nothing to do with the legality of one person secretly recording the conversation with another without the consent of the other person, which is the situation in this case. That section had to do with placing a recording device in a room without the consent of the occupant.
Two observations are important. First, that statute concerns the placing of a recording device in a room for general surveillance of the conversations of anyone in the room. Second, and more revealing, the recording device could be installed in a room with the consent of the occupant, and any conversations of others entering the room could obviously be overheard without their consent. This can hardly constitute authority for the proposition that before the enactment of the Privacy Act contained in Chapter 1.5, it was unlawful for the police or anyone else to record a face-to-face conversation with another without the other person’s consent. It is the enactment of section 632 that made such activity unlawful. The exemption of section 633 for the police officers clearly applies if they were operating within the scope of their authority.
It scarcely can be doubted that the police officers involved in this case were operating within the scope of their authority when they were investigating the charge of sexual harassment. The majority transmutes the plain language of the statute, “acting within the scope of ... authority,” to mean “acting in conducting a criminal investigation.” I cannot imagine that these police officers could be convicted of a crime for recording this conversation on the basis of this transmuted language. The strict construction required of criminal statutes would unquestionably preclude it. If the conduct does not constitute a crime under the statute, there can be no victim of a crime and, therefore, no civil remedy.
I find the majority’s constitutional argument to be unprecedented and unsound. The logic, as I understand it, is that even though the 1967 enactment of sections 632 and 633 may not have made this police recording a crime (with an additional civil remedy), the 1972 privacy amendment to the California Constitution did so, on equal protection grounds. Let us follow the logic through. A statute makes it a crime for a private citizen to record the conversation with another person without the other person’s consent, but it does not apply to police officers operating within the scope of their authority, if they could lawfully record it prior to the Act. Under the majority view, the 1972 constitutional amendment operates so as to require a new interpretation of the 1967 criminal statute to include conduct that was specifically exempted in that statute. The theory is that after the 1972 constitutional amendment it would violate equal protection requirements not to extend criminal liability to those exempted by the 1967 statute.
I know of no authority that allows a criminal statute that covers conduct of certain persons to be interpreted to extend to others it does not cover, on grounds that not to do so violates constitutional equal protection provisions. Certainly, the California case of Long Beach City Employees Ass’n v. City of Long Beach, 41 Cal.3d 937, 227 Cal.Rptr. 90, *804719 P.2d 660 (1986), relied upon by the majority, does not do so. Long Beach Employees simply held that a legislative scheme that outlawed involuntary polygraph tests for some private and public employees but permitted them for other public employees denied those other public employees equal protection of the law. The court, therefore, enjoined a public agency from requiring polygraph tests of its employees. Criminal or civil liability was not imposed on anyone by that decision. Here, the majority reinterprets the plain language of a criminal statute to impose criminal and civil liability on police officers on the grounds that failure to do so would violate the equal protection clause of the California Constitution. I find no justification for such an approach.
The legislature easily could have limited the section 633 exemption to “criminal investigations.” It did not do so. If for policy reasons this is desirable, it is up to the state legislature to make the change. It is not for a federal court, in the guise of statutory or state constitutional interpretation, to restrict the exemption in contravention of the plain language of the statute.
II.
STANDARD OF PROOF OF FALSITY
The majority announces that the plaintiff need only prove the falsity of the statements by a preponderance of the evidence, but that clear and convincing evidence is required to prove malice. In my opinion, Judge Brewster was correct in concluding that clear and convincing evidence is required for a jury to find that the statements are actually false, as well as for a jury to find actual malice. To find actual malice requires clear and convincing evidence that the defendant knew that his statement was false or that it was made with reckless disregard of whether it was false. Implicit in this finding is the requirement that the statement is, in fact, false. A defendant cannot be held hable for defamation for making a true statement. Yet, under the bifurcated standard announced by the majority, a defendant could be held hable for knowingly making a false statement that a jury under the same clear and convincing standard of proof would not have found to be false. These two elements of the cause of action are necessarily closely interwoven; it is illogical to separate them. I agree with the statement of Judge Griffin Bell in his concurring opinion in Firestone v. Time, Inc., 460 F.2d 712, 722-23 (5th Cir.), cert. denied, 409 U.S. 875, 93 S.Ct. 120, 34 L.Ed.2d 127 (1972):
The Supreme Court has not expressly added the-requirement of clear and convincing-proof of falsity to the plaintiffs burden of proof. As stated, the burden of showing falsity has been imposed upon the plaintiff in First Amendment cases. Garrison [v. Louisiana ] supra [379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)]; Rosenblatt [v. Baer ] supra [383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) ]. Such a standard of proof seems implicit however, in the stated requirement in New York Times that plaintiff has the burden of showing by clear and convincing proof that publication was with knowledge of falsity or with reckless disregard as to falsity vel non. I conclude for the same constitutional reasons giving rise to this stringent proof requirement that the clear and convincing proof standard would also apply to proving that the statement was false in the first instance.
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), Justice Brennan noted the difficulties a defendant would have if truth were only a defense, with the burden of proof being placed on the defendant, and he stated the reason for special constitutional safeguards:
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt *805whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
Id. at 279, 84 S.Ct. at 725-26 (citations and footnote omitted).
It is apparent Justice Brennan was concerned with the difficulty the defendant would have in establishing the truth of a statement and the chilling effect this would have on free speech. The majority misapplies this statement to justify easing the burden on the plaintiff in proving the falsity of a statement. (Majority op. at 801.) Justice Brennan’s words do not justify making it easier to prove the falsity of a statement than to prove the defendant’s knowing it was false. It would have an equally chilling effect on free speech if the plaintiff were not required to prove the falsity of a statement with the same convincing clarity as the knowledge it was false.
Because I agree with the district court’s rulings on these two issues I have discussed, I would affirm the judgment in its entirety.