The question no court has answered: Was Tina Peters jailed for speech?

By Jen Schumann | Rocky Mountain Voice

Despite months and months of litigation in both state and federal courts, no appellate court has ruled on whether Tina Peters’ speech was constitutionally protected—or whether it was improperly used to justify keeping her behind bars.

Her bond challenge stalled in Colorado’s appellate court, which dismissed it as untimely. She’s also turned to federal court, where her habeas petition was rejected under the Younger abstention doctrine. Even after a certificate of appealability was denied at the district court level, her case now proceeds forward in the Tenth Circuit—still without an answer to the First Amendment question at its core.

Peters’ case is now moving through two separate court systems. 

Peters’ conviction is being reviewed in Colorado’s state courts, beginning with the Court of Appeals and, if necessary, the Colorado Supreme Court. 

Her federal habeas challenge follows a different path—through the U.S. District Court and now the Tenth Circuit.

Peters’ central claim is that her speech—not violence or flight risk—was used to justify denying bond. The federal court acknowledged that claim, but declined to decide whether it was unconstitutional.

“Because this question remains pending before Colorado courts, this Court must abstain from answering that question until after the Colorado courts have decided the issue.”

The dismissal was entered without prejudice, meaning the federal court did not decide whether Peters’ speech was constitutionally protected. Instead, the judge concluded he had no choice but to step aside while the state appeal runs its course.

“Younger abstention is non-discretionary; it must be invoked once the three conditions are met… absent extraordinary circumstances.”

The court explained that abstention is required when a state criminal case is still underway, the state has a strong interest in the proceeding and the defendant has an opportunity to raise constitutional claims in that forum.

State court focuses on timing, not speech

The appellate panel never reached the First Amendment issue. The February ruling dismissed the bond petition as untimely.

The panel did not reach the speech claim. Instead, it focused on timing. Under Colorado precedent, a petition seeking review of a bond decision must be filed within 49 days of the trial court’s ruling. Peters filed hers more than a year later.

The dismissal came without prejudice. It did not touch the First Amendment issue. It simply declined to address it while the state appeal proceeds.

What Peters is arguing

Her federal case did not seek to undo the verdict. It challenged the bond decision, arguing that her speech had been used against her.

The federal court wrote that she “challenges the refusal of the Colorado Court of Appeals and the District Court of Mesa County to grant her bail pending appellate review.”

After dismissing her other claims, Peters narrowed her federal case to a single issue. As her filing states, “the sole remaining claim made in Ms. Peters’ Application for a Writ of Habeas Corpus is Claim 1 … seeking her release on bond pending her appeal due to the violation of her First Amendment rights.”

But because her direct criminal appeal is still pending in Colorado, the federal court ruled that any constitutional error could be addressed through that process.

“And because Ms. Peters’ appeal remains pending in state court … any First Amendment error can be corrected through the state appeal.”

Certificate of appealability denied

After the habeas petition was dismissed, Peters filed a notice of appeal. The Tenth Circuit briefly returned the case to the district court for one narrow question—whether to issue a certificate of appealability.

On Jan. 16, the district court declined to issue a certificate of appealability, writing that “a certificate of appealability pursuant to 28 U.S.C. § 2253(c) will not issue.”

A certificate of appealability doesn’t resolve whether the First Amendment claim succeeds. It determines whether reasonable jurists could debate the procedural ruling. The district court concluded that reasonable jurists would not debate its decision to dismiss the case under Younger abstention.

The federal appeal continues

The federal judge declined to issue a certificate of appealability, but that was not the final word. The Tenth Circuit now faces its own threshold question—whether the appeal can go forward at all.

In a brief order, the Tenth Circuit lifted its temporary pause, writing that “this court lifts the abatement of this proceeding.” It added that a briefing schedule will be set once the record from the lower court is complete.

“The court will set Ms. Peters’ opening brief and appendix due once it receives notice from the district court that the record is complete.”

On Jan. 23, the district court finalized the record for appeal and noted that no transcript would be filed.

The appeal has landed in the Tenth Circuit—the last stop before the U.S. Supreme Court in the federal court system. Whether the case goes any further will turn on the Tenth Circuit’s decision—and on whether the Supreme Court decides to take it up.

What remains unanswered

The bond petition did not survive in Colorado’s appellate court. It was dismissed on timing grounds. 

The federal court, meanwhile, stepped aside under Younger abstention and declined to issue a certificate of appealability. But the Tenth Circuit has lifted its temporary pause, and the appeal is now active there.

What no court has done is decide whether Peters’ speech was constitutionally protected—or whether it was improperly used as a basis to deny bond.

The bond petition was dismissed as untimely. The constitutional issue remains before appellate courts in both systems.

Until they do, the First Amendment argument at the center of Tina Peters’ bond fight remains unresolved.