I am convinced that it is not speech. I am convinced that any state in the country that wants to make such a video tape contraband has the authority to do so. I hope that all of them have done so.
I am also convinced that the federal government has no authority to pass a law on the matter. The federal government lacks any generalized police power. All the Constitution allows the federal government to declare illegal is treason, counterfeiting, and piracy on the high seas.