Hate speech at funerals

You may or may not know the name of Fred Phelps, but he really hates gay people and any person, organization, or government body that doesn't hate gay people as much as he does. He is most famous for leading anti-gay protests at the funerals for American soldiers killed in Iraq. Next up:

A fundamentalist church whose members demonstrate at the funerals of soldiers killed in Iraq and believe God hates gays will protest the Academy Awards and the funeral of Heath Ledger, because the actor played a gay cowboy in the 2005 film "Brokeback Mountain."

Members of the Westboro Baptist Church in Topeka, Kan., are trying to find out where the 28-year-old actor's funeral will be held and have already made signs to hold outside the Oscars that read "God Hates Fags and Fag Enablers," "Heath in Hell" and "Mourn for Your Sins," Shirley Phelps-Roper, daughter of the church's controversial founder Pastor Fred Phelps, told ABCNEWS.com.

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Last year a Baltimore jury determined the Westboro Baptist Church was too vulgar and offensive to be covered by the First Amendment. The church was ordered to pay nearly $11 million to Albert Snyder, who brought a suit after the Phelps clan picketed the funeral of his 20-year-old son Matthew, who died while serving in Iraq.

As we discussed briefly earlier this week, many instances of religious speech draw on the speech clause and the religion clauses of the first amendment. Phelps and his followers could raise both free speech claims in their appeal of the Baltimore judgment, and free exercise claims against the state. On the other hand, their activities are extremely offensive to many people and it is genuinely difficult to fathom what possible contribution to public debate is made by the persecution of families in mourning. Protesting at the Oscars fits more neatly with our general first amendment categories although many might argue that their planned signage constitutes hate speech.

Are there significant differences between speech at the Oscars ceremony and a protest at a soldier's or actor's funeral? Can we draw first amendment distinctions that allow the Baltimore judgment against Phelps to stand while protecting his protest in front of the Oscars? Should both be protected, or neither?