Cite as: 535 U. S. 357 (2002)
Opinion of the Court
The Government has not offered any reason why these possibilities, alone or in combination, would be insufficient to prevent compounding from occurring on such a scale as to undermine the new drug approval process. Indeed, there is no hint that the Government even considered these or any other alternatives. Nowhere in the legislative history of the FDAMA or petitioners' briefs is there any explanation of why the Government believed forbidding advertising was a necessary as opposed to merely convenient means of achieving its interests. Yet "[i]t is well established that 'the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.' " Edenfield v. Fane, 507 U. S., at 770 (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 71, n. 20 (1983)). The Government simply has not provided sufficient justification here. If the First Amendment means anything, it means that regulating speech must be a last—not first—resort. Yet here it seems to have been the first strategy the Government thought to try.
The dissent describes another governmental interest—an interest in prohibiting the sale of compounded drugs to "patients who may not clearly need them," post, at 379 (opinion of Breyer, J.)—and argues that "Congress could . . . conclude that the advertising restrictions 'directly advance' " that interest, post, at 384. Nowhere in its briefs, however, does the Government argue that this interest motivated the advertising ban. Although, for the reasons given by the dissent, Congress conceivably could have enacted the advertising ban to advance this interest, we have generally only sustained statutes on the basis of hypothesized justifications when reviewing statutes merely to determine whether they are rational. See L. Tribe, American Constitutional Law 1444-1446 (2d ed. 1988) (describing the "rational basis" or "conceivable basis" test); see also, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 466 (1981) (sustaining a milk packaging regulation under the "rational basis" test
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