While federal prosecutors used the Espionage Act, the states built their own machinery: between 1917 and 1920 some two dozen enacted criminal syndicalism or criminal anarchy laws punishing the advocacy of industrial or political change by force. California's statute alone produced over five hundred arrests and more than a hundred San Quentin sentences, overwhelmingly of IWW members whose crime was carrying a red card. Charlotte Anita Whitney — a 52-year-old suffragist and philanthropist convicted for attending a Communist Labor Party convention — became the era's cause célèbre.
The Supreme Court upheld both New York's conviction of Benjamin Gitlow (1925) and Whitney's (1927), but the cases produced the dissents that eventually became law: Holmes in Gitlow, and Brandeis's concurrence in Whitney — "the fitting remedy for evil counsels is good ones" — the most quoted defense of free speech in American jurisprudence. Whitney was pardoned in 1927 by the governor who cited Brandeis directly; the syndicalism convictions were finally repudiated in Brandenburg v. Ohio (1969), four decades after the prisoners had served their time.