As it now appears, the case of three women who engaged in a topless protest at Weirs Beach on Lake Winnipesauke over Memorial Day weekend is headed for trial and perhaps eventually to the New Hampshire Supreme Court for resolution. We tend to think that this prosecution does not represent the highest and best use of scarce judicial resources in the state’s perpetually cash-starved legal system: After all, it wasn’t as if the demonstrators were trying exercise the right to vote, conduct that many New Hampshire officials seem to regard as an even bigger threat to public order than topless sunbathing.

 Nonetheless, the case does present some intriguing legal and social questions. The three protesters are associated with the national Free the Nipple movement. A similar case brought last year by the town of Gilford was dismissed when the judge found that because the state has no law prohibiting female toplessness, the town had no authority to prosecute. The Legislature has since taken up but failed to enact such a prohibition.

The current case, however, is being brought under a Laconia city ordinance that prohibits “the showing of the female breast with less than a fully opaque covering (of) any part of the nipple” on “any public street, way, alley, parking area, park, common, beach or other property or public institution of the City.” (Talk about covering just about everything!) Late last month, District Court Judge James M. Carroll rejected the defendants’ motion to dismiss the charges, agreeing with the prosecution that the Legislature had indeed empowered municipalities to police such activities under state law.

In doing so, Carroll brushed aside several constitutional arguments made by the defendants. One was that the ordinance runs afoul of the Equal Protection Clause of the Fourteenth Amendment because it bars only women from going topless. The judge, however, found that the ordinance is permissible, in part because it treats all women equally — although differently from men. Certainly this is not the only time that the two sexes have been treated differently under the law. Until 1920, of course, women were not guaranteed the right to vote in the United States. We hope and think such barriers will continue to fall. For example, as recently as this year, there was a serious effort in Congress to require women to register for the military draft along with men, given that the Defense Department has now opened combat roles to women for the first time.

Carroll also rejected the defendants’ claim that the ordinance violated their First Amendment right to freedom of expression because their appearing topless in public was intended to “demonstrate to others a political viewpoint and message that the female is not a sexual object.” Indeed the whole point of the Free the Nipple movement is to desexualize women’s breasts. But the judge ruled that the ordinance restricted only their conduct, not the content of their message, which they were free to convey to beach-goers through presumably more conventional channels. It strikes us, though, that this might be a case where the conduct is the content, much as when protesters burn the flag, a form of protest that the U.S. Supreme Court has ruled enjoys constitutional protection. No one could reasonably argue that reading a flier advocating flag burning is the same thing as seeing a protester actually burning a flag.

Even more arresting, although not necessarily from a legal standpoint, was Carroll’s determination that restrictions on the exposure of women’s breasts are supported by “the important governmental interest in safeguarding the public’s moral sensibilities.” You may well ask why, if such a compelling interest does exist, the presidential election wasn’t cancelled this year. We go a step further in wondering whether the American public can be said to still have moral sensibilities in 2016. The content of politics, popular culture, social media and the internet argues strongly that it does not. And if these alleged moral sensibilities do exist, we doubt very much that a few protesters going topless at a beach in New Hampshire is enough to shock them.

And to return for just a moment to the voting theme, we note that on Election Day two women marched topless through Donald Trump’s midtown Manhattan polling place with their bare torsos emblazoned with anti-Trump messages. Police soon ushered the protesters out and took them to the 17th precinct, where they were charged with — violating a law that prohibits electioneering at the polls. Moral sensibilities were not implicated.