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US suit: City ordered gallery to remove painting of naked butt

Borghi Art Gallery, Englewood, NJ
Borghi Art Gallery, Englewood, NJ

By Charles Toutant, From New Jersey Law Journal

An art gallery that was cited for displaying a painting depicting a woman’s bare buttocks has filed a First Amendment suit against the City of Englewood.

The Borghi Fine Art Gallery and owner Laura Borghi filed their suit April 13 in federal court in Newark. Englewood and its code enforcement officer, Walter Deptuch, are named as defendants.

The suit comes after the town issued a summons to the gallery in January for displaying the artwork in an area that was visible from the public sidewalk. The gallery and its owner were cited for their display of the offending work in a manner that made it visible from the front window of the gallery.

The plaintiffs do not identify the name of the artwork in their complaint but said it was an acrylic and collage on canvas by Tom Dash.

Englewood did not call the painting obscene, or suggest it depicted sexual activity, the complaint says. But it violated the First Amendment rights of the gallery and its owner by issuing a summons, which subjected the defendants to fines, imprisonment and legal fees, according to the complaint.

The Englewood ordinance, enacted in 1992, subjects violators to a fine of up to $1,250 per day and up to 90 days in jail. The ordinance requires that any depiction of nudity, sexual activity or sexual paraphernalia in a commercial establishment must be confined to a room or enclosure whose interior is not visible from other parts of the premises. The ordinance requires the entrance to the room to be marked by a warning, in letters not less than two inches in height, that persons under 18 are not permitted.

On Jan. 7, the gallery received a visit from code enforcement officer Deptuch, who ordered the plaintiffs to take down the Dash painting because it displayed a bare buttock, according to the complaint.

Englewood’s prohibition on the display of a human buttock, “which is generally defined as the back of a hip that forms one of the fleshy parts on which a person sits,” is vague as to whether a partial display of a buttock would subject the plaintiffs to criminal sanctions, the suit says.

Borghi has suffered mental and emotional distress as a result of the defendants’ actions and the business of the gallery has been negatively impacted, the suit alleges.

Borghi declined to comment when reached at the gallery. Her attorney, Brian Bernstein, a solo in Fort Lee, did not respond to messages left at his office. William Bailey of Huntington Bailey in Westwood, said the town had not been served with the complaint and that he was not familiar with the gallery dispute.

IMAGE: Borghi Art Gallery, Englewood, NJ Carmen Natale

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